text:
    FRANK DeLARMI AND JEREMIAH DUGGAN, PLAINTIFFS-APPELLANTS, v. THE BOROUGH OF FORT LEE, NEW JERSEY : BURT ROSS, AS MAYOR OF THE BOROUGH OF FORT LEE, NEW JERSEY ; JEFFREY KLEINER, AS POLICE COMMISSIONER OF THE BOROUGH OF FORT LEE, NEW JERSEY ; ARTHUR DALTON, AS THE ACTING CHIEF OF POLICE OF THE BOROUGH OF FORT LEE, NEW JERSEY ; JAMES J. MULCARE, AS BOROUGH ADMINISTRATOR OF THE BOROUGH OF FORT LEE, NEW JERSEY ; CAROL KOHOUT, AS BOROUGH CLERK OF THE BOROUGH OF FORT LEE, NEW JERSEY ; THE CIVIL SERVICE COMMISSION AND THE DIRECTOR OF THE CIVIL SERVICE COMMISSION, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued February 3, 1975
    Decided February 26, 1975.

      Before Judges Lora, Handler and Tarleton.

      Mr. Herbert S. Siegal of the Hew York Bar, pro hac vice, argued the cause for appellant (Mr. Donald B. Conway, attorney; Mr. Timothy J. Sullivan on the brief).

      Mr. Armand Bohan argued the cause for respondents Borough of Port Lee, Burt Ross, Jeffrey Kleiner, Arthur Dalton, James J. Mulcare and Carol Kohout (Messrs. McCarter and English, attorneys).

      Mr. John F. Shoosmith, Jr., Deputy Attorney General, argued the cause for respondents Civil Service Commission and its Director (Mr. William F. Hyland, Attorney General of Hew Jersey, attorney; Mr. Theodore A. Winard, Assistant Attorney General, of counsel).
   The opinion of the court was delivered by

Lora, J. A. D.

Plaintiffs appeal from a dismissal of their complaint in lieu of prerogative writs which sought to compel defendants to appoint them as permanent policemen in the Borough of Fort Lee.

Effective December 13, 1971 plaintiff Prank DeLarmi was given a temporary appointment as a patrolman in the Borough of Port Lee under the Emergency Employment Act of 1971 (hereinafter E. E. A.), 43 U. S. C. A. § 4871 et seq. His appointment was recorded by the Department of Civil Service as “recorded pending review.”

Plaintiff Jeremiah Duggan was given a provisional appointment under the E. E. A. effective May 9, 1972. The Department of Civil Service approved the appointment pending open competitive examination.

Both plaintiffs are honorably discharged veterans of the United States Armed Forces. The availability of federal funds under the E. E. A. expired on June 30, 1973.

DeLarmi’s appointment was terminated as of July 1, 1973 and he was then rehired on July 11, 1973 under a “temporary appointment pending open competitive examination.” The resolution recited that “[w]hereas E. E. A. funds have been made available to the Borough of Fort Lee for the purpose of employing certain persons as officers and employees of the Borough, now, therefore be it resolved •—■ that Frank DeLarmi is hereby provisionally appointed as a patrolman in the Fort Lee Police Department effective July 1, 1973.” Duggan’s appointment was terminated as of September 30, 1973 and he was given a temporary appointment as a policeman “pending open competitive examination.”

At oral argument on the return day of the order to show cause plaintiffs’ attorney contended that plaintiffs not only were not told that they would be required to take an examination before they could be given a permanent position but were led to believe they were not required to do so. Furthermore, he insisted that when DeLarmi signed his application for appointment the word “temporary appointment pending open competitive examination” were not on the form.

In support of this contention he pointed out that on De-Larmi’s application form in the area marked “For Civil Service Department Use Only,” the boxes which were checked showing the Department’s action were (1) “Provisional Appointment,” (2) “Approval Pending,” and (3) “Disposition of Certification.” The box which would have shown approval of provisional appointment pending open competitive examination was not cheeked. (We note that on Duggan’s form the boxes for “Provisional Appointment,” “Approval Pending” and “Open Competitive Examination” were checked.) The borough asserted by affidavit that plaintiffs were aware of and on October 12, 1973 received hand-delivered notification of the examination.

On or about December 18, 1973 plaintiffs completed the 60-day police training course given by the New Jersey Department of Law and Public Safety Police Training Commission at Sea Girt, Hew Jersey, and were awarded the New Jersey State Qualifying Certificate.

On January 8, 1974 plaintiffs were notified by letter that they were requested to meet with the acting chief of police, the borough administrator and the police commissioner on January 11, 1974. Following that meeting plaintiffs were dismissed from the Fort Lee Police Department, effective January 17, 1974.

The sole ground for dismissal was that a competitive examination had been held and the Civil Service Commission had pursuant thereto promulgated an eligible list of 387 persons available for appointment as patrolmen, and in accordance with Civil Service Rule 1-14.1 plaintiffs* provisional appointments had to be terminated. Plaintiffs had not taken the competitive examination.

The trial judge found that the Borough of Fort Lee had employed the plaintiffs provisionally, had afforded them training required by N. J. S. A. 52:17B-69, had notified them of the Civil Service open competitive examination, and concluded that such examination was a legitimate requirement and not an “artificial barrier” to employment interdicted by § 4876(c) (18) of the E. E. A. He thereupon entered final judgment dismissing plaintiffs’ complaint but restrained the discharge of plaintiffs pending disposition of this appeal.

Plaintiffs contend the trial judge erred (1) in not compelling the borough to appoint them as permanent police officers in light of 42 U. S. C. A. § 4871 et seq. (the Emergency Employment Act of 1971) and N. J. S. A. 52:17B-66, and (2) in not finding that the borough, by availing itself of federal funds under the E. E. A., waived any and all Civil Service requirements regarding plaintiffs.

The Emergency Employment Act of 1971, P. L. 92-54, 42 TT. 8. G. A. § 4871 et seq., provided in pertinent part:

(c) Required provisions ■—■ veterans, special consideration. An application for financial assistance for a public service employment program under this Act shall include provisions setting forth — * * *
* * 5i-> * * nr *
(18) assurances that the program will, to the maximum extent feasible, contribute to the elimination of artificial barriers to employment and occupational advancement, including civil service requirements which restrict employment opportunities for the disadvantaged. [42 U. S. C. A. § 4870(c).]

Iii this connection, however, it is also noted that subsection (15) provided for

* * !|" assurances that agencies and institutions to whom financial assistance will be made available under this chapter will undertake analysis of job descriptions and a reevaluation of skill requirements at all levels of employment, including civil service requirements and practices relating thereto, in accordance with regulations promulgated by the Secretary; * * ®.

Plaintiffs claim that in light of their training and competent performance as temporary patrolmen, their successful completion of the police training course, and the fact that the Civil Service examination is general and non-job oriented, such examination as applied to them is an artificial barrier to employment since the test results are not related to and do not show their competency as policemen.

In their brief plaintiffs specifically state it is not their contention that the Civil Service concept is illegal or unfair, or that Civil Service examinations be declared useless and unconstitutional as artificial barriers to employment, but rather that where a municipality avails itself of federal programs and funds it must comply with the standards and assurances required of such programs, citing Lehigh Const. Co. v. Orange Housing Auth., 56 N. J. 447 (1970). Accordingly, they assert that Congress has required, as a prerequisite to the receipt of federal funds, the 'waiver of State Civil Service requirements.

Thus, the primary issue is whether the Civil Service examination as applied to plaintiffs is an artificial barrier to employment. We agree with the trial judge that the Civil Service examination is a legitimate requirement for public service and hence not within the prohibition of the E. E. A. The purpose of requiring an examination is to ensure that appointments and promotions will be made on merit and not on favoritism. As stated in Falcey v. Civil Service Commission, 16 N. J. 117 (1954):

The important social objectives of the constitutional and statutory provisions are evident; they are designed to aid in obtaining effective public service through .personnel selected on the basis of proper standards and qualifications rather than upon political or other extraneous considerations. See Sullivan v. McOsker, 84 N. J. L. 380, 385 (E. & A. 1913). [at 122]

Since the examination has a legitimate purpose, it does not fall within the class of “artificial barriers to employment and occupational advancement, including civil service requirements which restrict employment opportunities for the disadvantaged.” 43 U. S. C. A. § 4876(c) (18). Rather than being a barrier to employment, the examination ensures that appointments will be fairly made.

The E. E. A. was enacted as a stopgap measure to provide temporary public employment to the unemployed during a- high unemployment period and to provide the training to enable its participants to secure more permanent employment in either the public or private sector. 43 U. S. C. A. § 4876 (b)(3) (4). The objective was the removal of “artificial barriers,” not legitimate requirements for performance of the job. Sen. Rep. No. 93-48, 93d Cong., 1st Sess. (1971); U. S. Code Cong, and Admin. News, 93d Cong., 1st Sess. 1971, at p. 1189.

The act did not by its terms purport to do away with all Civil Service requirements but only those which restricted employment opportunities for the disadvantaged. While the report as well as the act did not define an “artificial” as opposed to a “legitimate” requirement, the examination requirement is a sine qua non of the Civil Service system. It is evident then that the E. E. A. intended to preclude only those requirements which were restrictive as to the disadvantaged. We suggest, for example, certain educational qualifications or language proficiencies might fall into that category.

It is interesting to note that the New Jersey Department of Civil Service in its regulations pertaining to E. E. A. appointees has provided that such appointees may receive appointment to regular positions only through regular open competitive examination procedures. Civil Service Personnel Manual, § 20-5.102 (b).

There is no express or implied provision in the E. E. A. that those employed under its provisions are to automatically become permanent employees upon the expiration of the act, nor is there any suggestion that a waiver of Civil Service requirements was mandated or even contemplated by Congress as a precondition to the receipt of federal funds under the act. By the same token, the fact that the greater number of municipalities in Bergen County have not adopted Civil Service is irrelevant.

Plaintiffs further argue that respondents are estopped from denying them appointment because of Port Lee’s misrepresentations as to the necessity of taking a Civil Service examination to secure permanent appointment. Aside from the categorical denial that any such representations were made, doctrines of estoppel are not applied against the State and its counties and municipalities to the same extent as they are against individuals and private corporations.

Appointments of police officers are a governmental function in the performance of which a municipality may not be bound or estopped by unauthorized acts of its officers. Bayonne v. Murphy & Perrett Co., 7 N. J. 298, 311 (1951); Keenan v. Essex Cty. Bd. of Chosen Freeholders, 106 N. J. Super. 312, 316 (App. Div. 1969). Certainly the doctrine may not be applied to the actions of an appointing authority insofar as its powers to make appointments in the classified service are concerned. Representations of an appointing authority operating under Civil Service that it will appoint or promote someone to a Civil Service position without complying with Civil Service law are illegal and not binding upon the Department of Civil Service.

Lastly, plaintiffs assert that the Police Training Commission Act, N. J. S. A. 52:17B-67 et seq., would be violated if plaintiffs were required to take the examination after completing the police training course. However, N. J. S. A: 52.17B-68 merely provides that “no person shall hereafter be given or accept a permanent appointment as a police officer unless such person has successfully completed a police training course at an approved school.” This is a requirement for all who seek a permanent police position and was not intended by the Legislature to supersede or to be in lieu of a Civil Service examination in those municipalities operating under Civil Service.

Confirmation of this general legislative intent may be found in L. 1974, c. 177, approved and effective December 10, 1974 which provides that certain women who have been employed as sheriff’s officers on a temporary basis for years and who graduated in the upper 10% of the class of a police academy approved and authorized by the Police Training Commission, and who attended such police academy under a federal grant pursuant to the E. E. A., shall be eligible for appointment as a sheriff’s officer on a permanent basis without having to take a Civil Service open competitive examination.

In view of the foregoing it would appear that plaintiffs’ remedy, if any, lies with the Legislature and not the courts.

Affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. ANTHONY LOUIS MARCHITTO, JR., DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted February 10, 1975
    Decided February 27, 1975.

      Before "Judges Leonard, Seidman and Bischoff.

      Messrs Bofa & Willis, attorneys for appellant (Mrs. Peter B. Willis, of counsel and on the brief).

      Mr. William F. Hyland, Attorney General of New Jersey, attorney for respondent (Mr. Marc J. Friedman, Deputy Attorney General, on the brief).
   Per Curiam.

A jury convicted defendant of (1) possession of a controlled dangerous substance (N. J. S. A. 24:21-20), and (2) possession of a controlled dangerous substance with intent to distribute the same (N. J. S. A. 24:21-19 (a) (1)). His sole contentions on appeal are that (1) the warrantless search and seizure involving his automobile violated his constitutional rights, and (2) the trial judge should have interrogated a juror who made a remark to defense counsel outside the courtroom, in order to ascertain whether there was bias or prejudice.

We perceive no merit in the first point. Our careful review of the record satisfies us that the trial judge correctly denied defendant’s pretrial motion to suppress evidence.

The State’s proofs on the motion showed that on the basis of information from a reliable informant that a car whose occupants included defendant would be returning from New York with drugs in it, Jersey City police officers established a surveillance at the New Jersey exit from the Holland Tunnel. The vehicle described by the informant emerged from the tunnel and was followed for a distance until the police stopped it, identified themselves, and requested the driver, one Freddie Lee Brown, to step out and produce his license and registration. As Brown left the car a detective observed a piece of tin foil sticking out from the carpet. Because of its appearance and based on his experience that narcotics were commonly packaged in that way, he seized it. His examination of it uncovered four large glassine bags containing a white powder which a field test performed at the police precinct indicated to be an opium derivative.

Defendant argues that no reason existed for stopping the vehicle in question other than the suspicion, based upon the information received, that the occupants would be in possession of narcotics. He claims that there was no evidence that the vehicle was in violation of any provision of the Motor Vehicle Act. He says further that the search and seizure were not made incidental to a lawful arrest, and that there was enough time for a search warrant to have been obtained after the informant gave the police the details which led ultimately to the arrest of defendant and his companions.

Police may rightfully stop a motor vehicle at random and demand production of the operator’s license and registration. State v. Gray, 59 N. J. 563, 567; N. J. S. A. 39:3-29. Here, moreover, by virtue of the detailed and reliable information they had received concerning the possible presence of narcotics in the car, the police had additional cause to stop the vehicle and ask the operator for his credentials. Once the car was stopped, the piece of tin foil came into plain view. To a police officer trained in the detection and prevention of crime, in this case particularly in the area of narcotics, it denoted a commonly used receptacle for packets of drugs. The detective here was thus justified in picking it up to examine its contents. In the circumstances we think the detective acted with probable cause and the contraband seized was not the product of an illegal search and seizure. Further, because of the exigencies of the situation, we do not believe that it would have been feasible for the police officers to have obtained a search warrant during the time they maintained a watch for the suspected automobile. Finally, the seizure and the arrest being sufficiently contemporaneous so as to constitute connected units of an integrated incident, it did not matter that in precise point of time the arrest did not precede the search. State v. Doyle, 42 N. J. 334, 343 (1964).

The remaining assignment of error troubles us. It appears that on the fourth day of trial defense counsel informed the judge of an incident which had occurred during the luncheon recess that (lay. He said that while he was in the corridor near the elevator one of tile jurors “gestured with a little smile,” came over and said to him, “I’m surprised at you.” He said further that he backed away, indicating to the juror with “my hands over my month as if to be quiet.” The juror then entered the elevator and left.

Defense counsel requested the trial judge to interrogate the juror to determine what the remark meant and whether it evidenced bias or prejudice against him or defendant. The judge rejected the request, saying, “I do not think it would be appropriate to inquire into what the juror meant.” He added that he did not agree with counsel that the remark was entirely uncomplimentary. “In any case,” he said, “the guilt or innocence will be determined by the evidence and the law regardless of the juror’s reactions to or hindrance of any attorney in the ease.” He indicated that he would refer to the matter in his charge and then he said:

í' * * T0 inquire into the juror's meaning has some hazards. For one thing, I do not want to single the juror out. I do not want to reprimand the juror, and I think it would be inadvisable to have the jury know about this, this casual incident, which I am sure the juror did not mean in any, did not, T am sure the juror did not intend any wrong by the remark. To highlight it might then provoke a situation where I would have to excuse the juror * * and I do not want to.

Counsel then expressed the opinion that by the juror’s mannerisms and facial expression the remark was antagonistic. The trial judge responded:

I am not denying that, I am assuming that is why, the reason you are concerned about it. What she meant was she suggested that her opinion of, of either you or a defendant’s case is not as high as it was earlier in the case. “Oh, I’m surprised at you” at this point.

Counsel’s motion for a mistrial was denied. If the trial judge thereafter reminded the jury “not to have any connection with anyone in the case,” as he said he would do, the record does not reveal it.

Defendant advances the argument that it need not he demonstrated that the juror’s remark was in fact prejudicial. He contends that where the record fails to show the reason for the remark because the trial judge declined to interrogate the juror, it will be presumed to be prejudicial. Although the cases on which he relies, State v. Auld, 2 N. J. 426, 432 (1949), and Guzzi v. Jersey Central Power & Light Co., 36 N. J. Super. 255, 264 (App. Div. 1955), certif. den. 19 N. J. 339 (1955), are factually distinguishable in that they involve communications between the judge and jury in the absence of counsel, thejr do stand for the principle that in such case, if the record does not disclose' whether the communication was prejudicial, it will be presumed to be so and constitute causd for a reversal of the judgment. That principle, it seems to us, is pertinent here.

It is axiomatic that the right to trial by a fair and impartial jury is a fundamental one and should always be guarded by the court. Turner v. State of Louisiana, 379 U. S. 466, 471-472, 85 S. Ct. 546, 13 L. Ed. 2d 424 (1965). See State v. Levitt, 36 N. J. 266, 270 (1961).

We cannot speculate on what the juror meant by the remark addressed to defense counsel. While we are unable to say that on its face it indicated hostility, prejudice, bias or a fixed opinion of the' case, it was clearly not complimentary, as the trial judge himself acknowledged at one point in the colloquy. Defense counsel’s request that the court inquire into the matter was not unreasonable in the circumstances. Such investigation might well have satisfied the court and counsel that the import of the comment was not such as to prejudice defendant’s right to a fair trial. Cf. Lawrence v. Tandy & Allen, 14 N. J. 1, 11 (1953) ; Hansson v. Catalytic Construction Co., 43 N. J. Super. 23, 31 (App. Div. 1956). The trial judge’s hesitancy to single out the juror was not a sufficient response to the request, particularly since he tended to agree with counsel that the remark may have been derogatory. If he did not think it advisable to interrogate the juror, he should at least have taken th'e alternative course of simply quietly excusing the juror from further participation in the case, there being more than 12 jurors at the time. He did neither, and his failure to pursue one of those available courses of action was, in our view, a mistaken exercise of discretion on his part.

There is nothing in the record before us from which we can be certain that the juror’s statement was so innocuous that defendant’s right to a fair trial could not have beten prejudiced thereby. We are left in a state in which we cannot tell one way or the other. In the circumstances, we have no choice but to presume that the remark was prejudicial, thus requiring a reversal of the judgment of conviction.

Reversed and remanded for a new trial.


author: Seidmax, J. A. D.

text:
    SHAW MUDGE & COMPANY, A CORPORATION, PLAINTIFF-RESPONDENT, v. SHER-MART MANUFACTURING CO., INC., A CORPORATION, DEFENDANT-RESPONDENT, UNITED STATES OF AMERICA, CLAIMANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted February 10, 1975
    Decided February 27, 1975.

      Before Judges Leonard, Seidman and Bisoi-ioee.

      Mr. Jonathan L. Goldstein, United States Attorney, at-torn^ for appellant (Mr. Ronald L. Reisner, Assistant United States Attorne3r, of counsel).

      Messrs. Jamieson, Walsh, McCardell, Moore and Peshin, attorneys for respondent Shaw Mudge & Company (Mr. Burton Peshin, of counsel).

      No brief was filed in behalf of respondent Sher-Mart Manufacturing Co., Inc.
   The opinion of the court was delivered by

Seidmax, J. A. D.

The issue involved in this appeal is whether a fully perfected security interest in an account receivable is superior to the lien of a subsequent judgment creditor who levied upon that account prior to default on the part of the debtor in the secured transaction.

The facts are not in dispute. On September 20, 1972, defendant Sher-Mart Manufacturing Co., Inc. (Sher-Mart) entered into a security agreement with The Princeton Bank and Trust Company to secure payment of a $50,000 loan evidenced by a promissory note. The agreement granted to the bank a first security interest in certain collateral described therein, including “accounts receivable of Borrower now owned, held and/or hereafter to be created satisfactory to the Bank.” Simultaneously, a financing statement was filed in the office of the Secretary of State.

On May 4, 1973 plaintiff herein sued Sher-Mart in the Mercer County District Court to recover the sum of $1900 on a book account, together with interest and costs. Judgment was thereafter entered in its favor for $2100.76. Pursuant to a writ of execution, plaintiff caused a levy to be made on June 14, 1973 on a Sher-Mart account receivable due and owing from E. J. Korvette, Inc. Plaintiff then moved for an order directing Korvette to pay to the constable the amount of the judgment plus subsequent costs. Sher-Mart objected to the entry of the order and the matter was set down for hearing on August 30, 1973.

On August 14, 1973 the bank assigned all its right, title and interest in the security agreement to the Small Business Administration, an agency of the United States of America. A financing statement covering the assignment was duly filed. Sher-Mart owed at that time the sum of $48,109.35 plus interest accruing at the per diem, rate of $10.88. By reason of Sher-MarPs having failed to pay the July installment on its note, the Small Business Administration notified Sher-Mart on August 21 that it was in default and demanded payment in full.

The claimant herein next filed a motion in the county district court for an order vacating the levy and directing Korvette to pay the amount of the account receivable to the Small Business Administration. It was, on further motion, admitted as a party so as to assert its claim to the levied property. In a letter opinion the trial judge upheld plaintiff’s levy on the ground that the right of the parties were fixed as of the date of the levy and Sher-Mart’s subsequent default and the consequent right of the Small Business Administration to collect Sher-Mart’s accounts receivable did not relate back to a date prior to the default.

Claimant appeals and we reverse.

Under the Uniform Commercial Code-Secured Transactions, N. J. S. A. 12A:9-302(2), claimant’s assignment entitled it to whatever rights the bank had at the time. It is not in dispute that the bank had an enforceable security interest in the collateral described in the agreement (N. J. S. A. 12A:9-204 (1)). The collateral included accounts (N. J. S. A. 12A:9-105), defined in N. J. S. A. 12A:9-106 as “any right to payment for goods sold or leased or for services rendered which is not evidenced by an instrument or chattel paper.” The security interest attached not only to present accounts receivable but also to those to be acquired in the future (see N. J. S. A. 12A:9-204(3)). It is uncontroverted that the bank had taken all necessary steps for perfecting its security interest (N. J. S. A. 12A:9-303(1)), including the filing of a financing statement (N. J. S. A. 12A:9-302(1)) with the Secretary of State (N. J. S. A. 12A:9-401(1) (c)).

There is no doubt that the bank had a perfected security interest in the Korvette account prior to the levy thereon by the judgment creditor. A security interest attaches to collateral as soon as there is an agreement that it attach (the security agreement here), value is given (the bank’s $50,000 loan to Sher-Mart), and the debtor has rights in the collateral (defendant’s right to collect the money Korvette owed it) (N. J. S. A. 12A:9-204(1)). Cf. M. Rutkin Elect. Sup. Co., Inc. v. Burdette Elect., Inc. 98 N. J. Super. 378; 384 (Ch. Div. 1967). It is self-evident that the Korvette account must have been in existence before the levy. Consequently, when the levy was made the security interest had already attached to the account.

N. J. S. A. 12A :9—301(1) (b) provides that an unperfected security interest is subordinate to the rights of a person who becomes a lien creditor (in this case a creditor who has acquired a lien on the property involved by levy, N. J. S. A. 12A:9-301(3)), without knowledge of the security interest and before it is perfected. It has been pointed out that Code statements generally are in the negative. Thus, there is no affirmative rule as to perfected security interests, leaving “the reader to imply that the rule is the opposite of the rule stated as to unperfected interests.” 1 Coogan, Hogan and Vagts, Secured Transactions under the Uniform Commercial Code, § 4.09 [3] at 306. The inferences to be drawn from subsection (1) (b) “are that an unperfeeted security interest is good against a lien creditor with knowledge, and a perfected security interest is good whether or not the subsequent lien creditor has knowledge.” Id.

Although there appears to be no reported case in this State squarely in point, it has uniformly been held elsewhere, in the absence of a statutory or common law exception, that a secured creditor who has duly filed a financing statement is entitled to priority over a subsequent lien creditor seeking to levy on or otherwise claim the same collateral. Texas Oil & Gas Corp. v. United States, 466 F. 2d 1040 (5 Cir. 1972); Grain Merchants of Ind. v. Union Bank & S. Co., Bellevue, Ohio, 408 F. 2d 209 (7 Cir. 1969); Rosenberg v. Rudnick, 262 F. Supp. 635 (D. Mass. 1967); Troy Lumber Co. v. Williams, 124 Ga. App. 636, 185 S. E. 2d 580 (App. Ct. 1971); Walker Bank & Trust Co. v. Smith, 88 Nev. 502, 501 P. 2d 639 (Sup. Ct. 1972); In re Pasco Sales Co., Inc., 77 Misc. 2d 724, 354 N. Y. S. 2d 402 (Sup. Ct. 1974); General Motors Acceptance Corp. v. Stotsky, 60 Misc. 2d 451, 303 N. Y. S. 2d 463 (Sup. Ct. 1969); William Iselin & Co. v. Burgess & Leigh Ltd., 52 Misc. 2d 821, 276 N. Y. S. 2d 659 (Sup. Ct. 1967); Ferguson v. Morgan, 282 N. C. 83, 191 S. E. 2d 817 (Sup. Ct. 1972); West Coast Best Seed Co. v. Polk County Farm Co-op., 261 Or. 381, 494 P. 2d 880 (Sup. Ct. 1972); Industrial Packaging Prod. Co. v. Fort Pitt Pack. Int., 399 Pa. 643, 161 A. 2d 19 (Sup. Ct. 1960); Gulf Oil Co. v. First National Bank of Hereford, 503 S. W. 2d 300 (Tex. Civ. App. 1973). This rule applies as well to after-acquired collateral covered by the agreement, provided, of course, attachment has occurred as indicated hereinabove. drain Merchants of Ind. v. Union Bank & S. Co., Bellevue, Ohio, supra. It should be observed that the judgment lien here is not one which either by statute or common law is entitled to priority over a perfected security interest. Cf. Ferrante v. Foley, 49 N. J. 432 (1967).

The fact that at the time of the levy there may not yet have been a default on the bank loan to which the security agreement related is not determinative here. The rights of the parties were fixed, not when the levy was made, as the trial judge held, but rather when the security interest attached. Thus, while a debtor’s rights in collateral may be voluntarily or involuntarily transferred, including by way of levy (N. J. S. A. 12A:9-311), such transfer would still be subject to a perfected security interest. See Royal Store Fixture Co. v. N. J. Butter Co., 114 N. J. Super. 263, 268 (App. Div. 1971). Cf. The First Nat’l. Bank of Bay Shore v. Stamper, 93 N. J. Super. 150, 159 (Law Div. 1966). The Code merely sanctions sale or other creditor remedies against the debtor’s equity in the chattel. See Farrow v. Ocean County Trust Co., 121 N. J. L. 344 (Sup. Ct. 1938).

ÍTor is it of any consequence, as plaintiff now argues, that the secured creditor would have been unable to reach the Korvette account had it been paid to Sher-Mart prior to default. The security agreement in this case created no> security interest in the proceeds of the accounts receivable but only in the accounts themselves.

Sher-Mart was in default under the' security agreement when it failed to pay the note installment due July 31, 1973. The secured party on default had the right to take possession of the collateral, including, of course, the outstanding account receivable here involved. N. J. S. A. 13A:9-503. It was empowered to enforce its security interest by any available judicial procedure. N. J. S. A. 13A :9—501 (1).

\Ye hold therefore that since the bank’s security interest in the account receivable here in question, acquired by claimant by assignment, was superior to plaintiff’s judgment lien thereon, and since Sher-Mart’s default entitled claimant to immediate possession of the proceeds of the account, the trial judge should have directed payment thereof to claimant and not to plaintiff.

Reversed and remanded for the entry of an order consistent with the foregoing.


text:
    COUNTY OF OCEAN, IN THE STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. ANGELA M. LANDOLFO, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued October 7, 1974
    Decided February 28, 1975.

      Before Judges Michels, Morgan and Emm.

      Mr. Garry J. Boettger argued the cause for appellant (Messrs. Hiering, Qrosso, Gelzer <& Kelaher, attorneys).

      Mr. Richard O. Venino argued the cause for respondent.
   Per Curiam.

This is a condemnation ease involving the partial taking by plaintiff County of Ocean of 4.84 acres from an unimproved tract of land consisting of 57.86 acres located on Hooper Avenue, opposite its “T” intersection with Fischer Boulevard, in Dover Township, Ocean County, New Jersey. October 21, 1968 was the date fixed by the court for valuation. The commissioners conducted their hearing and awarded the sum of $36,000 for the 4.84 acres taken. Both parties appealed and a trial de novo was held before a jury. The jury awarded defendant property owner $32,000. The county appeals.

The entire tract of land from which the 4.84 acres was taken is irregularly shaped, having 2300 feet of frontage on Hooper Avenue and a depth of 1740 feet. Its topography varies from below grade to two feet above grade toward the rear. Natural drainage is therefore from the rear of the property towards Hooper Avenue. Portions of the property were, prior to the taking, subject to flooding. It was formerly used as a cranberry bog. Although there are no improvements on the subject property, the land was zoned R-300, permitting single-family residential construction. No application for subdivision had ever been filed.

The portion of the land taken consisted of an irregularly shaped 4.84 acre parcel which included 710 feet fronting on Hooper Avenue to a depth of 467 feet. The purpose of the taking was to provide a jughandle to protect vehicles making a left turn from Hooper Avenue southbound to Eischer Boulevard eastbound, as well as to provide reversal capability due to a center island being installed in Hooper Avenue. The posted speed limits on Hooper Avenue and Eischer Boulevard are 50 mph.

Both- parties produced expert testimony on value. Both witnesses adopted the so-called market data approach in estimating the value of the taken parcel, requiring an analysis of sales of comparable property adjusted with respect to time of the sale, location and characteristics of the comparable property. Plaintiff’s expert, Joseph D. Palmer, based his valuation upon three comparable sales. The first sale consisted of an irregularly shaped parcel of 39 acres, zoned R-300, immediately adjacent to the subject property, with 380 feet of frontage on Hooper Avenue, which sale took place over three years before the date of valuation. The per acre price of $16'66 was adjusted by Palmer for time, location and physical characteristics to $3000. The second sale utilized was of a 15-acre piece of unimproved land, located 500 feet south of the subject property, zoned R-300, from which a per acre price of $1500 was obtained in July 1965, again over three years prior to evaluation date. Similar adjustments to account for the time of the sale, location of the property and its characteristics yielded a valuation of $3700 an acre. The third sale utilized by Palmer was of an irregularly shaped unimproved parcel consisting of 19 acres, for which a purchaser in July 1965 paid $1500 an acre. This figure was similarly adjusted to $2100. Based on these sales, Palmer was of the opinion that the condemned 4.84-acre piece was valued at $3000 an acre.

John D. Lazarus testified on behalf of defendant property owner. He, too, announced that his opinion as to value was arrived at by applying the market data approach, using comparable sales with the appropriate adjustments. As stated by Lazarus:

I use the market data approach, which is also known as the comparable sales approach, as this is an improved [sic] property and it is the only approach applicable to support the appraiser’s opinion. And that means my examination of sales in the area of lands that would be comparable as to size, as to topography, as to location, and as close as possible with zoning, ¿liso for the same type of use.

He was about to offer five such sales, at which point plaintiff requested a hearing, out of the presence of the jury, as to their comparability. The hearing disclosed that four of the five sales relied upon by Lazarus were of parcels for which preliminary subdivision approval had been obtained at the time of sale. Thus, the 1969 Snug Harbor property was sold as an approved subdivision. Defendant admitted that three other sales to which Lazarus was about to refer were also made with respect to acreage for which preliminary subdivision approval had been obtained. The trial judge concluded these were not comparable sales and refused to permit Lazarus to testify with respect to them as affirmative evidence of value. Of the five sales upon which Lazarus relied in arriving at a valuation, only one was left, the 1968 Cypress Mines sale of 104 acres of landlocked land which sold for $1850 an acre. It was also zoned B-200 and located three-quarters of a mile southwest of the subject premises.

On cross-examination of Lazarus, however, the trial court refused to permit plaintiff to interrogate Lazarus with respect to the weight given by Lazarus to the excluded sales in reaching his opinion as to value of $3600' an acre, on the ground that he had already declared evidence of these sales inadmissible. It warned plaintiff that if he undertook cross-examination concerning these excluded sales and the effect they may have had on Lazarus’ opinion as to value, he would then be forced to admit the excluded sales into evidende. Plaintiff contends this ruling was error. We agree.

It has been declared elementary that an expert witness is always subject to searching cross-examination as to the basis of his opinion. State v. Azzolina Land Corp., 101 N. J. Super. 103, 109 (App. Div. 1968). The weight to be given to an expert’s appraisal of land depends, of cours'e, upon his candor, intelligence, knowledge, and especially upon the facts and reasoning which are offered as foundation of his opinion. D., L. & W. R. Co. v. Hoboken, 16 N. J. Super. 543 (App. Div. 1951), rev’d on other grounds 10 N. J. 418 (1952); Savoia v. F. W. Woolworth Co., 88 N. J. Super. 153 (App. Div. 1965); State v. Azzolina Land Corp., supra.

In the present case the determination as to the non-comparability of four of the sales referred to by Lazarus in support of his opinion as to value was a matter committed to the sound discretion of the trial judge which was not mistakenly exercised in the circumstances here present. State v. Azzolina, supra 101 N. J. Super, at 109. Moorestown Tp. v. Slack, 85 N. J. Super. 109, 114 (App. Div. 1964), certif. den. 43 N. J. 452 (1964). As noted in 5 Nichols, Eminent Domain (3d ed. 1971), § 21.31: (at 21-54 to 21-56).

Obviously, no two properties can be exactly alike, and no general rule can be laid down regarding the degree of similarity that must exist to make such evidence admissible. It must necessarily vary with the circumstances of each particular case. Whether the properties are sufficiently similar to have some bearing on the value under consideration, and to be of any aid to the jui-y, must necessarily rest largely in the sound discretion of the trial court, which will not he interfered with unless abused.

See Waukegan Park Dist. v. First Nat. Bank of Lake For., 22 Ill. 2d 238, 174 N. E. 2d 824 (Sup. Ct. 1961). Having determined, however, that four of the five sales referred to by the landowner’s expert to be noncomparable as a matter of law, it was clearly proper for plaintiff to attempt to discover and inform the jury of the extent to which the landowner’s expert relied upon such noncomparable sales in arriving at his opinion as to value. The refusal to permit him to do so, or permitting him to do so only at the risk of having the noncomparables admitted into evidence, constituted reversible error,

That such sales were inadmissible to establish value did not lessen their potential for undermining opinion testimony which appeared to have been based thereon. Indeed, under early law, now obsolete, evidence of comparable sales was not even admissible on the direct testimony of the appraiser, but could only be used during his cross-examination. 8 Nichols, Eminent Domain, § 13.02(3). Inadmissibility of such sales to state value is no index of its availability on cross-examination to determine the weight, if any, given by the expert to the sales declared lacking in comparability as a matter of law.

The county next contends that the trial court committed error in denying its motion to strike all testimony concerning damage to the remaining property caused by the anticipated traffic which would be generated by the jughandle, together with noise and fumes resulting from use by traffic. The availability of compensation for this kind of damage to the land remaining after a partial taking for highway or jug-handle uses remains an open question in this State except in special circumstances as when the land affected by the traffic, noise, fumes, and the like, has a special use, such as a school. Cf. Bd. of Ed. of Morristown v. Palmer, 88 N. J. Super. 378 (App. Div. 1965), rev’d on other grounds 46 N. J. 522 (1966) ; State v. Bd. of Ed. Elizabeth, 116 N. J. Super. 305 (Law Div. 1971).

It is unnecessary for us to deal with this problem in the present case, and we therefore expressly decline to do so, because in the circumstances presented any testimony concerning damage to the remainder stemming from traffic, noise and fumes would be too remote and speculative to warrant reception into evidence whatever the general rule with respect to the availability of compensation for this kind of damage to a remainder may later be disclosed to be. The portion of defendant’s land taken and the portion remaining were raw acreage for which no application for subdivision approval had even been made. The record discloses no present intention to make such an application. No evidence was produced with respect to present or anticipated future traffic volume. In these circumstances, any evidence or opinion based thereon concerning the existence of damage to the remainder, or its extent, caused by traffic on the jughandle, would necessarily be speculative and remote, and could not serve as the basis of any award of compensation. The denial of plaintiff’s motion to strike all such evidence bearing on this claim and the submission of this issue to the jury for consideration constituted reversible error.

Judgment below is reversed and the matter remanded for a new trial.


author: Botter, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. LASZLO RAJNAI AND ROGER EARL HOLT, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued October 30, 1974
    Decided March 4, 1975.

      Before Judges Matthews, Eritz and Botter.

      Mrs. Jane G. Eleinfeld, Assistant Deputy Public Defender, argued the cause for appellant Laszlo Rajnai; Ms. Randall W. Wesireich, Assistant Deputy Public Defender, argued the cause for appellant Roger Earl Holt (Mr. Stanley G. Van Ness, Public Defender, attorney).

      Mr. Glenn Kushel, Deputy Attorney General, argued the cause for respondent (Mr. William F. Hyland, Attorney General of New Jersey, attorney; Mr. Garl W. Swanson, Jr., Deputy Attorney General, of counsel and on the briefs).
   The opinion of the court was delivered by

Botter, J. A. D.

Defendants Kajnai and Holt were convicted in a jury trial of possession of a controlled dangerous substance, heroin, in violation of N. J. S. A. 24:21-20 (a) (1). Both were given suspended indeterminate sentences to “Yardville,” and probation terms of five years and three years, respectively, were imposed. Each defendant has appealed and, with leave of court, has filed a separate brief urging various grounds for reversal of their convictions.

There was evidence from which the jury could find the following facts supportive of the convictions. Patrolman Warn approached a Volkswagen owned by defendant Rajnai which was in the parking lot of an apartment house. He observed Rajnai in the driver’s seat, Holt in the rear behind the passenger’s seat and two other passengers, one in the front and one in the rear. All had previously been in Holt’s apartment. When the occupants were ordered out of the car the officer observed Holt reach down and throw something under an adjacent car, later identified as a package containing ten glassine packets of heroin, three syringes, some needles, a bottle cap and a piece of moist cotton. In the back seat of the car the officer found an envelope containing white powder which proved to be heroin and a wad of tissue soaked in alcohol. He also observed that a section of the floor boards in the rear of the vehicle was missing, leaving a hole approximately 7 x 14 inches.

Defendant Rajnai argues that the court erred in failing to grant his motion for judgment of acquittal at the close of the ease and that the finding of guilt as to him was contrary to the weight of the evidence. We reject both of these contentions. Considering all the circumstances there was sufficient evidence for the jury to determine beyond a reasonable doubt that defendant Rajnai unlawfully possessed heroin in his vehicle on the night in question. N. J. S. A. 24:21-20 (a) (1) makes it a crime to possess “actually or constructively” a controlled dangerous substance, such, as heroin, unless otherwise authorized by law. One who intends to exercise control and dominion over an object, knowing its character, is said to be in possession of that object. State v. Reed, 34 N. J. 554, 557 (1961); State v. Labato, 7 N. J. 137, 148 (1951); State v. Reyes, 98 N. J. Super. 506, 512 (App. Div. 1968), certif. den. 51 N. J. 582 (1968). Actual physical, manual possession is not required if the intention to exercise such dominion and control over the object is manifest, in circumstances where it is reasonable to infer that the capacity to do so exists. State v. Reyes, supra; State v. Brown, 67 N. J. Super. 450, 454-455 (App. Div. 1961). Possession need not be exclusive but may be jointly exercised by two or more persons. State v. Puckett, 67 N. J. Super. 365, 376 (App. Div. 1960), aff’d 34 N. J. 574 (1961). Proof of possession may be by circumstantial evidence as well as direct evidence. See State v. Humphreys, 54 N. J. 406, 413-414 (1969); State v. Reyes, supra.

In State v. Humphreys, supra, the court held that evidence was sufficient to support a conviction of a defendant for unlawful possession of a gun when defendant was in the front seat of a car and a revolver was found wedged between the cushions of the back seat. The court observed that the gun was “within the zone of Humphreys’ knowledge and control,” and the jury could find an intention to exercise dominion over it. For similar reasons in the case at hand we find sufficient evidence to sustain the verdict. Cf. Dolson v. Anastasia, 55 N. J. 2, 6 (1969). Therefore, denial of defendant’s motion for judgment of acquittal was correct. State v. Reyes, 50 N. J. 454, 458-459 (1967). We also rej'ect Holt’s contention that the verdict as to him was against the weight of the evidence. He was in the back seat where an envelope containing heroin was found, and the jury could have concluded that he was the one who threw away the package of heroin and paraphernalia.

Defendants Rajnai and Holt also contend that sufficient proof of the chain of possession was not established to support the admission into evidence of Exhibit S-3, the white envelope containing heroin. Although S-3 was not produced with the other seized contraband on the first day of the trial, it was found at police headquarters and produced the following day when it was identified and its earlier absence explained. The trial judge was correct in admitting this evidence. The sufficiency of the foundation for the offer of an exhibit is left to the discretion of the trial judge. State v. Brown, 99 N. J. Super. 22, 27 (App. Div. 1968), certif. den. 51 N. J. 468 (1968) Clearly there was no abuse of discretion here.

We find no error, also, in the admission of the syringes and bottle cap (a cooker) which had been discarded by the rear seat passenger, allegedly Holt. This narcotic paraphernalia was relevant to show intent and knowledge with respect to the possession of the heroin, at least as to the defendant Holt. It was circumstantial evidence applicable to both defendants and was part of the res gestae in that the possession of the paraphernalia was simultaneous with that of the heroin. Evid. R. 55; State v. Campisi, 47 N. J. Super. 455 (App. Div. 1957), certif. den. 26 N. J. 304 (1958). See also State v. Williams, 110 N. J. Super. 64 (App. Div. 1969), aff’d o. b. 56 N. J. 53 (1970); State v. Smith, 84 N. J. Super. 452, 460 (App. Div. 1964), certif. den. 43 N. J. 270 (1964). Although evidence of “other crimes” may have some potential for prejudice, in the ease at hand we find no abuse of the trial court’s discretion in refusing to exclude this evidence under Evid. R. 4.

Normally, a limiting instruction should be given by the trial judge sua sponte when “other crime” evidence is admitted so that the jury will not give it greater scope than is justified. Evid. R. 6; State v. Lair, 62 N. J. 388 (1973); State v. Campisi, supra, 47 N. J. Super, at 458-460. No request for such an instruction was made at trial. Accordingly, the error will be disregarded unless it can be shown that it was “clearly capable of producing an unjust result.” R. 2:10-2; State v. Macon, 57 N. J. 325, 335-338 (1971). The failure to give a limiting instruction does not necessarily require the reversal of a conviction. See State v. Lair, supra, where a conviction was sustained despite the failure to limit the jury’s consideration of defendant’s prior criminal convictions. The same result was reached where the trial court failed to give a limiting instruction as to the use of “fresh complaint” evidence in a rape ease. State v. Tirone, 64 N. J. 222, 227 (1974).

Where the charge is unlawful possession of heroin, the relevancy of paraphernalia for the ingestion of the drug is obvious, and would be even to laymen. The introduction of such evidence lacks the capacity to create undue prejudice, especially where the drug itself has been introduced in evidence. It is difficult to imagine what useful purpose would be served by a limiting instruction in such a case, as contrasted with the ease in which a separate and distinct crime is proved against a defendant. Accordingly, we find the failure to give a limiting instruction harmless and no warrant for reversal. Elsewhere, in a number of jurisdictions, the failure to give a limiting instruction as to “other crime” evidence has been held not reversible error absent a request for a proper charge. United States v. Miller, 478 F. 2d 1315, 1318 (2 Cir. 1973), cert. den. 414 U. S. 851, 94 S. Ct. 144, 38 L. Ed. 2d 100 (1973); Petley v. United States, 427 F. 2d 1101, 1106 (9 Cir. 1970), cert. den. 400 U. S. 827, 91 S. Ct. 55, 27 L. Ed. 2d 57 (1970), (a pipe with residue of marijuana admitted to prove a “knowing possession”); Dirring v. United States, 328 F. 2d 512, 515 (1 Cir. 1964), cert. den. 377 U. S. 1003, 84 S. Ct. 1939, 12 L. Ed. 2d 1052 (1964); United States v. Smith, 283 F. 2d 760, 764 (2 Cir. 1960), cert. den. 365 U. S. 851, 81 S. Ct. 815, 5 L. Ed. 2d 815 (1961); Berry v. United States, 271 F. 2d 775, 776-777 (5 Cir. 1959), cert. den. 362 U. S. 903, 80 S. Ct. 612, 4 L. Ed. 2d 555 (1960); People v. Chism, 390 Mich. 104, 211 N. W. 2d 193, 200 (Sup. Ct. 1973); State v. Harris, 106 R. I. 643, 262 A. 2d 374, 376 (Sup. Ct. 1970); State v. Noyes, 69 Wash. 2d 441, 418 P. 2d 471, 475 (Sup. Ct. 1966), cert. den. 386 U. S. 968, 87 S. Ct. 1053, 18 L. Ed. 2d 122 (1967). See also, 1 Wigmore, Evidence (3 ed 1940), §13 at 301: "the better opinion is that the opponent of the evidence must ash for that [limiting] instruction; otherwise, he may be supposed to have waived it as unnecessary for his protection.”

An additional contention raised by Holt is that the trial court erred in allowing Officer Warn to correct his testimony after refreshing his recollection from recorded testimony which he had previously given concerning Holt’s position in the car. About four months before the trial the officer had testified on a motion to suppress evidence. He then placed Holt in the back seat on the passenger’s side, and he testified that after he observed this occupant "reach down” he then saw a package rolling toward a nearby car. At the trial, however, Officer Warn first testified that Holt was in the front passenger seat. He was then asked to read his prior testimony. Thereafter, over objection, the court allowed him to state that he was mistaken, that Holt was seated in the rear of the car, on the passenger’s side, and that he was certain of this. Defendant Holt contended then and now that the prosecutor was improperly allowed to impeach the testimony first given on direct examination by his own witness.

The rule that a party may not impeach his own witness may have derived from the practice in primitive trials of using "oathhelpers” or compurgators to support a party’s cause and for whom the party implicitly vouched. A rule later developed preventing a defendant from discrediting his own witness, although in early times the prosecution was exempt from this restriction. Johnson v. Baltimore & Ohio R. Co., 208 F. 2d 633, 635 (3 Cir. 1953), cert. den. 347 U. S. 943, 74 S. Ct. 639, 98 L. Ed. 1091 (1954); Becker v. Eisenslodt, 60 N. J. Super. 240, 248 (App. Div. 1960); 3A Wigmore, Evidence (Chadbourn rev. 1970), § 896 at 659-660; see Report of the N. J. Supreme Court Committee on Evidence, 60-61 (1963). The rule has long been modified in New Jersey to allow a party to neutralize adverse testimony which comes as a surprise to him. Evid. R. 20 ; State v. Cooper, 10 N. J. 532, 560-561 (1952); State v. D’Adame, 84 N. J. L. 386 (E. & A. 1913). Here, however, the prosecutor contended at trial that he was not endeavoring to “impair the credibility” of his own witness, nor to “introduce extrinsic evidence relevant upon the issue of credibility,” as precluded by Evid. R. 20. The prosecutor did not offer in evidence the prior testimony of the witness. The prosecutor merely asked to have the witness refresh his recollection as to testimony he previously gave on the subject to determine whether that testimony or his current testimony was correct. After doing so the witness then testified that he realized his error and that he was able to recall the events with certainty. While this practice is not to be encouraged, because it contains the same vice as leading questions, a trial judge should have discretion to permit this procedure in order to elicit “all relevant evidence.” Evid. R. 7(f); State v. Kwiatkowski, 83 N. J. L. 650, 653-654 (E. & A. 1912); State v. Silver, 2 N. J. Misc. 479, 480, 127 A. 545, 546 (Sup. Ct. 1924), aff’d o. b. 101 N. J. L. 232 (E. & A. 1925); see State v. Wisc, 19 N. J. 59, 77-78 (1955); 3A Wigmore, op. cit., § 904 at 675; McCormick, Evidence, § 38 at 71 (1954); cf. Nobero Co. v. Ferro Trucking, Inc., 107 N. J. Super. 394, 404 (App. Div. 1969).

Dean Wigmore endorses the practice of allowing prior statements of a witness to be nsed in the “always legitimate effort of the party to stimulate his witness’ memory and obviate the effect of temporary forgetfulness.” 3A Wigmore, supra, § 904 at 675. In support, Wigmore quotes from cases which go beyond the needs of the instant case, since, as noted above, the prior contradictory statement was not used here to confront the witness openly nor to “probe” the accuracy of his recollection. Cf. Bullard v. Pearsall, 53 N. Y. 230, 231-232 (Ct. App. 1873), quoted with approval in People v. Freeman, 9 N. Y. 2d 600, 217 N. Y. S. 2d 5, 176 N. E. 2d 39 (Ct. App. 1961), where the court said:

Such questions may be asked of the witness for the purpose of probing Ms recollection, recalling to his mind the statements he has previously made, and drawing out an explanation of the apparent inconsistency. This course of examination may result in satisfying the witness that he has fallen into error and that his original statements were correct; and it is calculated to elicit the truth. It is also proper for the purpose of showing the circumstances which induced the party to call him. Though the answers of the witness may involve Mm in contradictions calculated to impair his credibility, that is not a sufficient reason for excluding the inquiry; * * * inquiries calculated to elicit the facts, or to show to the witness that he is mistaken, and to induce him to correct his evidence, should not be excluded simply because they may result unfavorably to Ms credibility. * * * As a matter of course, such previous unsworn statements are not evidence, and when the trial is before a jury, that instruction should he given. [53 N. Y. at 231-232]

While broad latitude may be allowed in examining a hostile witness, especially a party called by his adversary in a civil action (see Becker v. Eisenstodt, supra), it is clear that prior testimony, not itself offered in evidence, may be nsed in a limited fashion to refresh the recollection of a non-hostile witness. See also, Hileman v. Indreica, 385 Mich. 1, 187 N. W. 2d 411 (Sup. Ct. 1971), holding that, in the presence of the jury, a witness may be confronted with his prior deposition for the purpose of “refreshing his recollection.” (The broad scope of the court’s holding seems to have been influenced by the hostile interest of the witness.) If the recollection of the witness is not refreshed, however, and the proponent of the witness offers the prior statement in evidence, it can be used only for purposes of neutralization. Evid. R. 20.

Accordingly, the judgments of conviction are affirmed.

      ln McCormick, Evidence, § 38 at 71 (1954), it is said:
      Moreover, as in the case of leading questions, he [the trial judge] may decline to permit the use of the aid to memory where he regards the danger of undue suggestion as outweighing the probable value, in the exercise of his discretion to control- the manner of the examination.
      See Zimmer v. Westinghouse Electric Corp., 26 N. J. 339, 351 (1958).


author: Kimmelman, J. S. C.

text:
    FRANK CAPASSO, T/A CAPASSO BROS. AND ROBERT LAUDATI PLAINTIFFS, v. L. PUCILLO AND SONS, INC., AND THE TOWN OF BELLEVILLE, DEFENDANTS. RICHARD W. DILL AND JAMES PETROZELLO COMPANY, INC., A NEW JERSEY CORPORATION, PLAINTIFFS, v. TOWN OF BELLEVILLE AND THE BOARD OF COMMISSIONERS OF TOWN OF BELLEVILLE, AND L. PUCILLO & SONS, INC., DEFENDANTS.
    Superior Court of New Jersey Chancery and Law Divisions
    Decided January 2, 1974.

      Mr. Richard C. Cooper and Mr. Reginald Jennings for plaintiffs Prank Capasso and Robert Laudati (Messrs. McCarter & English, attorneys).

      Mr. Marie D. Lamer for defendant L. Pucillo & Sons, Inc.' (Messrs. Budd, Lamer, Kent, Cross <& Picillo, attorneys) .

      Mr. David 8amson for plaintiffs Richard W. Dill and James - Petrozello Company, Inc. (Messrs. Lieh, Wolff <& Samson, attorneys).

      Mr. John R. Scott for defendant Town of Belleville.
   Kimmelman, J. S. C.

This case poses a somewhat unique problem of statutory construction involving the interplay between the public bidding statutes and the jurisdiction of the Public Utilities Commission over certain public utilities. This formal written opinion follows up on an oral opinion delivered because of the rather urgent necessity for a determination by this court so that the parties would know where they stood —• not only as to the Town of Belleville but other municipalities as well now faced with a similar problem. The oral opinion would also enable any party feeling aggrieved to promptly lodge an appeal, so that a more definitive ruling might be obtained with some dispatch.

The facts are not disputed. It appears that in 3970 L. Pucillo & Sons (Pucillo), a scavenger, garbage collector and disposer of refuse, entered into a contract with codefendant Town of Belleville as a result of public bidding for the purpose of servicing residents of the town for the collecting and disposing of their garbage. The contract was to run for three years, 1971 through 1973. In anticipation of the expiration date the Town of Belleville on October 23, 1973 adopted a resolution authorizing the town clerk to advertise for proposals for the supplying of scavenger service for the Town, to commence January 3, 1974, under certain terms and specifications which were set forth in instructions to the bidders. The proposals were to he received and opened by the governing body on November 27, 1973 at 8:30 p.m. Apparently several prospective bidders obtained copies of the specifications and prepared for submission what they considered to he the necessary bids.

On November 27, 1973, at the meeting of the governing body —• in this instance the board of commissioners —• the mayor announced that the bids would not ho received and that the bidding procedure would be dispensed with because the town had entered into a contract with Pucillo for supplying the scavenger services for a two-year period — that is, the years 1974 and 1975 — at the same rate as charged by Pucillo in the prior contract entered into as the result of public bidding some three years earlier.

Eepresentatives of plaintiff James Petrozello Company were in attendance at the meeting of November 27, 1973, as were representatives of plaintiff Capasso Bros., both scavenger companies, who had prepared bids and had them ready for submission. Their attendance was obviously a futile exercise.

On that same evening the hoard of commissioners of Belleville, pursuant to the mayor’s announcement, adopted a resolution awarding the scavenger service contract to Pueillo, indicating that it was reached as the result of a negotiated agreement and that the contract was to be executed for the next two-year period without any increase in the cost theretofor charged the municipality by Pueillo.

By reason of the foregoing a proceeding in lieu of prerogative writs was instituted in the Law Division by Richard Dill and James Petrozello Company, contesting the award of the contract without public bidding. In addition, a Chancery Division action was started by Capasso Bros, and Robert Laudati, a local taxpayer, seeking to enjoin the operation of Pueillo scheduled to commence on January 1, 1974 under the new contract.

In view of the exigency of the situation and by agreement among counsel the matters were set down for final hearing this first court day of the new year.

Preliminarily, certain jurisdictional objections must be disposed of. In my view plaintiffs have sufficient standing to bring this action. There is no question with respect to the standing of taxpayer Laudati. It is assumed that Dill is also a taxpayer: he falls into the same category. And there is no question with respect to the standing of the two disappointed bidders, Capasso Bros, and James Petrozello Company. I do not know whether their bids would have been lower than the price to be charged by Pueillo. In affidavits supplied on behalf of both Capasso and Petrozello it is indicated that their bids would result in a lower cost to the town. In any event, the fact that they were potential bidders and their ability to bid was thwarted by the action of the board of commissioners in entering into a contract as a result of private negotiations gives them standing to contest the action.

Reference is made to the ease of Band’s Refuse Removal, Inc. v. Fair Lawn, 62 N. J. Super. 522, 539 (App. Div. 1960). That ease does not directly hold that potential bidders have standing, but by inference from the language of Judge Goldmann it appears that a bidder or potential bidder would have standing because such a person would not be a total stranger to the contractual arrangements being contemplated by the municipality.

Likewise, I do not believe that the Public Utilities Commission has jurisdiction in this matter because there is not here presented a dispute involving the Commission, or rates set or franchise areas specified by the Commission, or involving its jurisdiction. Rather, there is here a dispute simply involving the capacity of a municipality to enter into a contractual arrangement for garbage collecting services without the necessity of public bidding.

As a general proposition it is required in this State that every contract or agreement for the performance of any work or for the furnishing or hiring of materials or supplies, the cost or the contract price whereof is to be paid with or out of public funds and which will be for a sum exceeding in the aggregate $2500, shall be made or awarded only after public advertising for bids. The authority therefor is found In N. J. S. A. 40A:11-4. That section is an outgrowth of a pre-existing statute, N. J. S. A. 40:50-1, which contained, insofar as its operative features were concerned, substantially similar language. N. J. S. A. 40:50-1 was superseded and thereby repealed as a result of the enactment of the Local Public Contracts Law, N. J. S. A. 40A :11-1 et seq. (L. 1971, c. 198).

These bidding statutes, both the previous repealed section and the currently operative section, each contain a pertinent exception dispensing with public bidding where the supplying of any product or the rendering of any services to a municipality is to be performed by a public utility which is subject to the jurisdiction of the Board of Public Utilities Commissioners “in accordance with tariffs and schedules of charges made, charged or exacted, filed with said board.” See N. J. S. A. 40A:11-5(1)(h).

In 1970, when Pucillo entered into the original contract with the Town of Belleville as the result of public bidding, Pucillo was not a public utility. At that time there was operative N. J. S. A. 40:66-4 specifically dealing with street cleaning and refuse disposal services supplied to a municipality. That section generally provides as follows:

The governing body may, if it deem it more advantageous, contract with any person for the cleaning of the streets, or the collection, removal and disposal of ashes, garbage, refuse and waste matter or any portion thereof. Before making any such contract or contracts the governing body shall first adopt specifications for the doing of the work in a sanitary and inoffensive manner, and any such contract or contracts the amount of which exceeds $2,500.00 shall be entered into and made only after bids shall have been advertised therefor, and awarded in the manner provided in chapter 50 of this Title (§ 40:50-1 et seq.) * * *

Obviously, in 1970 with respect to the original Pucillo contract, the Town of Belleville followed N. J. S. A. 40:66-4. With the enactment of the Solid Waste Utility Control Act of 1970 (L. 1970, c. 40), effective December 6, 1970, companies engaged in solid waste collection and solid waste disposal were for the first time added to the definition of companies considered public utilities and were placed under the general supervision, regulations, jurisdiction and control of the Board of Public Utility Commissioners. N. J. S. A. 48:2-13.

It is argued, therefore, that as a result of this amendment to the general public utility laws Pucillo (or any other scavenger for that matter), now considered a public utility, need no longer adhere to the public bidding procedure- before it may enter into- a contractual relationship with a municipality. The argument is made in reliance upon the public utility exception contained in N. J. S. A. 40A:11-5(1) (h), supra, and in the face of N. J. S. A. 40:66-4, supra, which remains unrepealed. The latter section, as I have previously indicated, requires municipalities to resort to public bidding before entering into a garbage disposal contract.

The question for decision, then, is whether the recent amendments to the general public utility laws giving the status of public utilities to scavengers, when taken in conjunction with the public bidding exemption for public utilities, has impliedly repealed N. J. S. A. 40:66-4 or in some way made it inapplicable.

As acknowledged by counsel and as is the general proposition of law, implied repealers are not favored. A subsequent enactment must be clearly repugnant to a prior enactment and must be designed to be a substitute for the former in order to rebut the presumption against implied rerpealers. A court is required, if at all possible, to construe applicable statutory provisions with a view to giving those provisions a harmonious meaning.

If, upon a reasonable construction, a pre-existing statute cannot stand under any reasonable interpretation in the light of the later enactment, then it must be found that the Legislature has impliedly repealed that previous inconsistent section. Loboda v. Clark Tp., 40 N. J. 424 (1963).

In deciding that issue, and in construing the various statutory provisions referred to, the court must bear in mind the legislative purpose and the very strong public policy behind the public bidding statutes.

As stated by the Appellate Division in Young v. West Orange Redevelopment Agency, 125 N. J. Super. 440, 443 (App. Div. 1973), which is the latest expression of our courts on the subject, the legislative policy behind the local public contracts law, N. J. S. A. 40A :11-1 et seq., is identical with its predecessor, N. J. S. A. 40 :50—1 et seq.

The purpose of public bidding is to benefit the taxpayers by securing competition and by guarding against favoritism, improvidence, extravagance and corruption.

What is meant by the phrase “to benefit the taxpayers” plainly is that the lowest competitive price from a responsible bidder is to be secured. The contract price obviously is paid by.'the taxpayers; therefore, the least they have to pay benefits them. At the same time the competition to be derived from public bidding will guard against favoritism, improvidence, extravagance and corruption.

There are, of course, exceptions to the bidding statutes. The exceptions are generally grounded in situations where public bidding would be meaningless or impractical. It was always the law that public bidding was dispensed with where the municipality or other governmental unit was contracting for professional services, whether medical, legal or otherwise. Professional services are not to be secured by public bidding because there is something inherent in the process which would nullify or detract from the professional quality of the services being sought.

N. J. S. A. 40A:11-5 enumerates other exceptions, such as the purchase of perishable foods. It may not be practical to secure bids where perishable foodstuffs are involved. Also, it may not be practical to secure public bids where an emergency is involved. And, as set forth in the predecessor statute, N. J. S. A. 40:50-1, and the current Local Public Contracts Law, it is not practical to secure public bidding where the services of a regulated public utility are involved.

Why this last exception ? The reason the statutory scheme dispenses with public bidding where a public utility is involved is because the legislative purpose behind public bidding — that is, to obtain a benefit for the taxpayers by securing competition and guarding against favoritism, improvidence, extravagance and corruption — becomes an impractical objective. Requiring regulated public utilities to submit bids does not advance the statutory design. In the popular sense, a public utility usually has a definite and fixed franchise area. In the popular sense, a public utility has a monopoly. In the popular sense, a consumer of the services or goods rendered by a public utility has no choice but to go to that particular company servicing his particular area.

Because it is necessary and desirable in our society that there be certain services rendered on a continuous basis without cutthroat competition, we have- the notion of public utilities. In order to guard against abuses by the publicly sanctioned monopoly it is required that the rates to be charged by the public utility he regulated. That is the protection afforded to the public. Similarly, that is the same kind of protecion which the general bidding statutes seek to achieve for the taxpaying public.

The Legislature had in mind that it would be impractical if not impossible, as a general proposition, to require a public utility to bid for services a municipality needed.

There is only one telephone company servicing Essex Connty, for example. It would he impractical to require a bid for the installation of telephones in the court house complex. There is only one gas company supplying Essex County wtih gas. It would, therefore, he impractical to require public bidding because only the Public Service Electric & Gas Company could bid and the price to be charged would have no reference to tho competitive market. The price to be charged would he in accordance with a schedule of rates and tariffs already on file with he Public Utilities Commission.

Erom the foregoing it is evident that what the Legislature had reference to when it sanctioned an exception to the public bidding laws in the case of public utilities was that the benefits to be secured from public bidding — that is, the lowest possible cost and the avoidance of favoritism, corruption and extravagance — were already met and obtained by the jurisdiction and control of the Public Utilities Commission over the public utilities.

The question now becomes whether those benefits to be derived from public bidding are amply safeguarded by contracting with that category of public utilities generally referred to as scavengers. Did the Legislature have in mind also- exempting from' public bidding those public utilities which do not have exclusive franchise areas or monopolies and which do not already have set forth on file with the Pub-lie Utilities Commission a schedule of rates and tariffs to be charged ?

I think it is important to make reference to N. J. S. A. 40A:11-38. That section sets forth all the provisions of Title 40 which are repealed as a result of the Local Public Contracts Law enacted in 1971. There is omitted from those sections repealed reference to N. J. S. A. 40:66-4 which would require public bidding in the case of scavengers and garbage collecting and disposal companies. True, N. J. S. A. 40:66-4 was enacted at a time when scavengers and garbage collecting companies were not legally defined as public utilities. But we must face up to the fact that the Legislature did allow that section to remain on the boobs when, at its last session, it included scavengers and garbage collecting companies as public utilities.

Is there any rational reason why the Legislature allowed this section to remain in force, or was there a legislative slip-up and mistake? If there was a legislative slip-up or error committed, then I must rule that N. J. S. A. 40:66-4 has been superseded and nullified. If there was no mistake committed, then I have to determine whether the two statutes can be harmonized. I believe they can be, and therefore must rule that there was no legislative mistake made.

The two can be harmonized by resort to the purposes behind public bidding. As emphasized several times now, public bidding is to secure a benefit to the taxpayers by fostering competition and guarding against favoritism, improvidence, extravagance and corruption.

In the instance of local scavengers and garbage disposal companies there is at present no such device as exclusive franchise territories. There is still no notion of a publicly sanctioned monopoly. There are no fixed rates or tariffs on file with the Public Utilities Commission.

There may come a time when scavengers and garbage collecting companies will have monopolies as the result of fixed franchise areas. One would assume that when that time comes their rates will also be fixed and subject to prior public scrutiny before being charged. However, the Public Utilities Commission has not yet exercised that degree of jurisdiction. When it does exercise such jurisdiction and control then and in such event public bidding will become an idle gesture and resort to the provisions of N. J. S. A. 40:66-4 will no longer be necessary. The crucial element missing here is a filed schedule of rates and tariffs to be charged. See N. J. S. A. 40A:11—5(1) (h). In my view, until such time as that becomes a requirement the provisions of N. J. S. A. 40 :66-4 must be adhered to.

Obviously, the very simplisiic argument that because scavengers and garbage collecting companies are public utilities they must be exempted does not provide the solution to this case. Unregulated public utilities that have not filed tariffs offer to the public none of the salutory benefits to be derived from public bidding. Accordingly, the court has no difficulty in harmonizing the statutes here involved.

For the reasons expressed, I conclude that the award of the contract by the Commissioners of the Town of Belleville to L. Pucillo & Sons on November 27, 1973 will be set aside as contrary to the provisions of the Local Public Contracts Law and N. J. S. A. 40:66-4.


author: Francis, J. S. C.

text:
    BRIDGETON EDUCATION ASSOCIATION, A NON-PROFIT CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF, v. BOARD OF EDUCATION OF THE CITY OF BRIDGETON, COUNTY OF CUMBERLAND, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided February 20, 1975.

      Mr. Joel 8. Selilcoff for plaintiff (Messrs. Hartman, Schlesinger, Schlosser & Faxon, attorneys).

      Mr. A. Paul Kienzle, Jr., for defendant.
   Francis, J. S. C.

On or about March 4, 1968 the Bridge-ton Board of Education (board) adopted and thereafter implemented a policy concerning extra compensation to be paid to teachers of special education (i. e., handicapped classes). This policy provided that those teachers holding permanent certification in the field of special education, issued by the Few Jersey State Board of Examiners, would receive extra pay of $400 a year. The reason for this extra compensation was because 18 additional credit hours were required for certification in this field than were required of teachers in normal classes. Also under this policy those teachers possessing provisional certification, i. e., teachers holding more than 6 but less than 18 additional credits, would receive $100 a year extra compensation. On September 1, 1973 the board implemented a policy it had unilaterally adopted on June 12, 1973. This new policy stated that only those teachers who, having already earned the additional 18 credits, held permanent certification to teach the handicapped would continue to receive $400 extra compensation. All other extra compensation for teachers certified in the field of special education were eliminated. This new policy was instituted in response to a change of the qualifications required to teach handicapped children by the Few Jersey State Department of Education.

The Bridgeton Education Association (association) instituted a grievance pursuant to the contract entered into be.tween the board and the association. Following the grievance procedure in the contract, the association processed the grievance through four steps. The result at the end of each step was adverse to the association. Instead of tailing the grievance to binding arbitration the association filed this suit.

The association alleges that since this policy change involves the subject of teacher compensation, it is a working condition which must be negotiated under N. J. S. A. 34: 13A-5.3 before the policy can be established. The board argues that the elimination of the extra compensation is merely a reflection or implementation of a policy decision made by the State Department of Education. They deny that working conditions are affected and assert that a question of policy is at stake fox which N. J. S. A. 34-.13A-5.3 proscribes the grievance procedure as the proper method for resolving this dispute. The board also claims that since the association has already chosen the grievance procedure it is foreclosed from filing suit due to a theory of estoppel, laches and failure to exhaust their administrative remedies.

The threshold question, therefore, is whether the association is foreclosed from instituting this suit since it had previously elected to file a grievance. It is uniquely a court’s function to rule on alleged violations of statutes. The grievance procedure under N. J. S. A. 34.13A-5.3 is designed to enable an employee to "appeal the interpretation, application, or violation of policies, agreements, and administrative decisions”. The grievance procedure does not and cannot decide if a statute has been violated. That question is for the court, and the fact that an act may constitute a grievance does not foreclose a court from deciding if the same act also violates a statute. The association has the right to come into court for appropriate relief for violation of the statute in addition to any other avenues of relief that might be open to them. Smith v. Evening News Ass’n, 371 U. S. 195, 83 S. Ct. 267, 9 L. Ed. 2d 246 (1962).

Mr. Justice Powell, in Alexander v. Gardner-Denver, 415 U. S. 36, 94 S. Ct. 1011, 39 L. Ed. 2d 147 (1974), pointed out that "the distinctively separate nature” of contractual and statutory rights is not destroyed because both rights are violated by the same act. Concedingly Alexander involved a violation of the civil rights statutes, nevertheless, the court did state that "no inconsistency results from permitting both rights to be enforced in their respectively appropriate forums.” 415 U. S. at 50, 94 S. Ct. at 1020, 39 L. Ed. 2d at 159.

Our Supreme Court, in Englewood Board of Education v. Englewood Teachers’ Ass’n, 64 N. J. 1 (1973),'clearly defined compensation as a term and condition of employment under N. J. S. A. 34:13A-5.3. There can be no doubt that the instant case involves compensation since teachers will no longer be receiving the extra monies they once were receiving. Therefore, by stopping the payment of this compensation to those teachers who were previously entitled to it without first negotiating with the association, the board has violated N. J. S. A: 34:13A-5.3.

There is much to be said for allowing one to come into court for vindication of a violation of a statutory right. In the instant case this means negotiation before the fact rather than grievance after the fact. Therefore, the parties are ordered to negotiate the issue of extra compensation for special education teachers.

This does not mean that an injured party can turn to a court for relief any time after the statutory violation occurs. Even though laches may not apply one must use reasonable promptness when availing himself of judicial protection. Filing the complaint in July 1974 for a statutory violation by the board that occurred in June 1973 is not reasonable promptness. It is inequitable to allow the association the right to negotiate this issue for the school year 1973-74 after they were dilatory in filing the complaint. The negotiations ordered by this court concerning extra compensation for special education teachers shall be retroactive only for the school year 1974-75.

Order accordingly.


author: Testa, J. O. C.,

text:
    MARGARET S. HUGHES, PLAINTIFF, v. CURTIS V. HUGHES, JR., DEFENDANT.
    New Jersey Superior Court Chancery Division
    Decided February 24, 1975.

      Mr. Steven Z. Kleiner for plaintiff (Messrs. Lummis, Kleiner, Moore & Fisher, attorneys).

      Mr. Ivan M. Sherman for defendant (Messrs. Davidow & Sherman, attorneys).
   Testa, J. O. C.,

Temporarily Assigned. In July 1974 plaintiff wife filed a complaint for divorce on grounds of desertion by defendant. Plaintiff sought, among other things, equitable distribution of the property acquired by the spouses or either of them during the marriage, pursuant to N. J. S. A. 3A:3A-33. Plaintiff sought to have included in the property available for distribution “the proceeds to be derived by the defendant in a workman’s compensation proceeding presently pending in which the defendant is named as petitioner and Owens Illinois Glass Company is named as respondent.”

By way of motion, plaintiff sought pendente lite relief, including an order respecting the disposition of any proceeds received by defendant-husband by virtue of his pending workmen’s compensation claim. The pendente lite order held this particular request in abeyance pending the filing by the parties of memoranda of law. Recognizing that no pendente lite order respecting the workmen’s compensation award which defendant might receive would be appropriate unless such award was held to be eligible for equitable distribution, it is the question of such eligibility which this court must now answer.

The question presented is whether an unliquidated workmen’s compensation claim of defendant-husband, which claim arose during coverture, is “property” eligible for equitable distribution pursuant to N. J. S. A. 2A:34-23. While this precise question has never been answered by any reported case in this State, there is ample precedent for holding that such a claim is subject to equitable distribution.

Under N. J. S. A. 2A:34-23 a court is authorized, incident to a grant of divorce, to distribute equitably “the property, both real and personal, which was legally and beneficially acquired by them or either of them during the marriage.” The interpretation by our courts as to what constitutes property acquired during the marriage has been an expansive one. Thus, in addition to the respective earnings of the spouses, all property acquired by gift, bequest, devise or descent by either of the spouses or by both of them is available for equitable distribution. Painter v. Painter, 65 N. J. 196, 214-217 (1974). The Painter court expressly found the legislative intent of N. J. S. A, 2A:3A-23 to be that “all property, regardless of its source, in which a spouse acquires an interest during the marriage shall be eligible for distribution in the event of divorce.” (At 217). Such a broad holding by this State’s highest court must of course give direction to our consideration of the case at bar by viewing inclusion of any interest in property as the general rule.

Defendant first seeks to except his workmen’s compensation claim from' inclusion in the property eligible for distribution on the ground that, until such time as the claim is liquidated, it amounts to a mere expectancy. The question of whether a property interest amounting to an expectancy may be eligible for equitable distribution has been discussed in DiTolvo v. DiTolvo, 181 N. J. Super. 72, (App. Div. 1974). In that case it was held that an unliquidated chose in action for personal injuries of one spouse, along with the other spouse’s per quod claim, constituted property available for equitable distribution. Addressing itself specifically to the expectant nature of a chose in action, the DiTolvo court stated:

It is true that a chose in action for personal injuries arising during marriage may be considered an expectancy in the sense that a recovery thereon may never come to fruition after the divorce judgment. Nevertheless we are satisfied that this does not preclude the matrimonial court from effecting an equitable distribution of the proceeds of the action if and when they do materialize.

Such was said to be in keeping with the legislative intent of N. J. S. A. 2A:34-23, as interpreted by Painter, supra, of broad inclusion of all property interests acquired during the marriage.

We hold that an unliquidated claim for benefits under workmen’s compensation is of the same character as' a chose in action for personal injuries and that, as such, it is eligible for equitable distribution under the rationale of DiTolvo, supra. -In both instances the property interest is' “expectant” in that the existence of actual proceeds is dependent upon the acquisition of a judgment and upon the’ satisfaction' of such judgment. In both DiTolvo and' the' case at bar légal proceedings had already been commenced and," once commenced, the prospects'for the realization of' proceeds from’'the workmen’s compensation claim are not in herently more speculative than was the prospect for recovery in the personal injury action. Indeed, the very purpose of the Workmen’s Compensation Act, N. J. S. A. 34:15-1 et Seq., was to provide a remedy less speculative than a common law negligence action.

Workmen’s compensation laws were designed to provide an expeditious and certain remedy for employees who sustain work injuries by the statutory imposition of absolute but limited and determinate liability upon the employer. * * * The employee surrenders his right to seek damage in an action at law in return for swift recovery independent of proof of fault. [Wilson v. Faull, 27 N. J. 105, 116 (1958)]

A workmen’s compensation claim can fairly be characterized as a statutory substitute fox a common law chose in action for personal injuries and is, given the provisions of the act and the liberality with which claims thereunder are viewed, easier to prove. Naseef v. Cord, Inc., 48 N. J. 317, 325-26 (1966) ; Wilson, supra. There is, therefore, no logical reason for distinguishing between a chose in action and a workmen’s compensation claim for purposes of their eligibility for equitable distribution.

Defendant next contends that a workmen’s compensation claim may not be reached by this court for equitable distribution because of N. J. S. A. 34:15-29, which provides that such claims “shall not be assignable, and shall be exempt from all claims of creditors and from levy, execution or attachment.” This section of the Workmen’s Compensation Act, however, has been construed as being directed at third-party claims against the injured worker which would threaten the economic well-being of the worker and Ms family. Steller v. Steller, 97 N. J. Super. 493, 497-499 (App. Div. 1967). The Steller court held, therefore, that workmen’s compensation benefits “may be reached for support for a wife and children.” Id. at 499.

That Steller held workmen’s compensation benefits reachable for alimony and child support does not deprive it of precedential value for the principal case in which equitable distribution is sought. 8 teller was decided in 1967 and thus predated the amending of N. J. S. A. 2A:34-23 by L. 1971, c. 212, § 8 to include, among other matters, a provision for equitable distribution. The close interrelationship of alimony and child support with equitable distribution in arriving at a just dissolution of the marital relationship has been clearly recognized by our Supreme Court. Painter v. Painter, 65 N. J. 196, 218; Rothman v. Rothmm, 65 N. J. 219, 234.

Finally, the fact that 8teller concerned a compensation judgment which had already been obtained, while in the ease at bar no judgment has yet been secured, must be held to be without legal significance here. The DiTolvo case, discussed supra, stands for the proposition that, for purposes of eligibility for equitable distribution, an interest in property need not be presently available for distribution to be the subject of a Judicial Decree.

This court therefore holds that an unliquidated workmen’s compensation claim, where the claim arose during coverture, may properly be reached for equitable distribution upon the dissolution of the marriage. An order pendente lite directing the defendant-husband to deposit any award he may receive on his compensation claim with his counsel is here appropriate.


text:
    DONALD MAGEE AND ELEANOR MAGEE, PLAINTIFFS, v. FORD MOTOR COMPANY AND RICE AND HOLMAN, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided January 20, 1976.

      Mr. Edward N. Adourian, Jr., for plaintiffs (Messrs. To-mar, Parles, Seliger, Simonoff & Adourian, attorneys).

      Mr. William B. Scatchard, Jr., for defendant, Ford Motor Company (Messrs. Gapehart & Scatchard, attorneys).
   Coruzzi, J. C. C., Temporarily Assigned.

The court is asked by the parties to this motion to determine the correct manner of computing post-judgment interest under R. 4:42-11 (a). Plaintiff argues that prejudgment interest should be included with the jury verdict in determining the total amount to be used as the basis for computing post-judgment interest. Defendant takes the position that prejudgment interest is intended to be compensatory and not punitive, and should not be compounded when calculating post-judgment interest.

R. 4:42-11 provides as follows:

(a) Rate. Judgments, awards and orders for the payment of money and taxed costs shall bear interest at 6% per annum from the date of entry, except as otherwise ordered by the court.
(b) Tort Actions. Except where provided by statute with respect to a public entity or employee, the court shall, in tort actions, including products liability actions, include in the judgment interest at 6% per annum on the amount of the award from the date of the institution of the action or from a date 6 months after the date of the tort, whichever is later. The contingent fee of an attorney shall not be computed on the interest so' included in the judgment.

The court is persuaded by the plain language of the rule that the word “judgment” as it appears in R. 4:42-11 (a) is intended to encompass both the jury verdict and prejudgment interest. Subsection (b) of the same rule instructs the court to include in the “judgment” prejudgment interest on the amount of the award. It is difficult to conclude that the framers of the rule intended the word “judgment” to have a different meaning in subsection (a) than it does in subsection (b).

Further support for a determination that prejudgment interest should be included in the judgment to compute post-judgment .interest is found in Busick v. Levine, 63 N. J. 351 (1973), where Chief Justice Weintraub addressed the question of an insurance carrier’s obligation to pay prejudgment interest where only post-judgment interest is provided for in the policy. He noted that “the carrier’s obligation to pay the judgment plainly includes the obligation to pay the constituent elements of damage incorporated in that judgment, among which, of course, is the item of prejudgment interest.” [63 N. J. at 361]

Other jurisdictions have agreed that interest which is a part of a judgment may be compounded for purposes of determining post-judgment interest. The Tenth Circuit, citing 47 C. J. S., Interest, § 21b, p. 34 stated: “It is the general rule that ‘a judgment bears interest on the whole amount thereof, although such amount is made up partly of interest on the original obligation, and even though the interest is separately stated in the judgment.' " North Drive-In Theater Corp. v. Park-In Theatres, 248 F. 2d 232, 240 (10 Cir. 1957). See also, 45 Am. Jur. 2d, Interest and Usury, § 78 (1969); Wenzler v. Pitchess, 359 F. 2d 402 (9 Cir. 1966); McFarlane v. Winters, 114 Utah 502, 201 P. 2d 494 (Sup. Ct. 1949).

Accordingly, an order allowing for the specified increase on the post-judgment interest assessment will be granted.