author: Lane, J. A. D.

text:
    STATE OE NEW JERSEY, PLAINTIFF-RESPONDENT, v. HERBERT COOPER, DEFENDANT-APPELLANT, AND JOSEPH MOSS, CARLTON HOPPS, CALVIN MASSEY AND ALBERT MAC NEIL, DEFENDANTS.
    Superior Court of New Jersey Appellate Division
    Argued January 5, 1971
    Decided January 15, 1971.

      Before Judges Kilkenny, Halpekn and Lane.

      Mr. Harry D. Ambrose, Jr., Assigned Attorney, argued the cause for appellant.

      Mr. Charles A. Cohen, Assistant Prosecutor, argued the cause for respondent (Mr. A. Donald Bigley, Prosecutor of Camden County, Attorney; Mr. Cohen on the brief).
   The opinion of the court was delivered by

Lane, J. A. D.

Cooper appeals from judgments of conviction of inciting the unlawful burning of property belonging to Camden County (N. J. S. A. 2A :148-10 subd. a) and of aiding or assisting prisoners to escape from the Camden County Jail (N. J. S. A. 2A:10A-7). He was sentenced to the New Jersey State Prison for consecutive terms of not less than 2y years nor more than 3 years and not less than 1 year nor more than 1 y years.

The indictments were tried against Cooper and Hopps, who were prisoners at the Camden County Jail on February 17, 1969. On that date a riot occurred in the jail during which county property was burned and destroyed and during which three fellow prisoners escaped through a window.

There was testimony from which the jury could find the following facts. The jail, located on the sixth floor of the Administration Building, consisted of four cell blocks, A, B, C and D. Cooper was an inmate in block B. When the correction officer in charge opened the door to block B to pass in a bucket and a mop, Cooper forced his way out yelling to the other inmates to come out and that he was taking over the jail. Cooper, Hopps and another inmate took the keys away from the correction officer and opened the doors to the other cell blocks. The prisoners came out of the cell blocks, broke tables in the dining area and set them on fire, broke windows and generally destroyed available property. The lock was broken from a window in block D through which the escape was made.

Both Cooper and Hopps testified in their own behalf denying that they were involved in inciting the riot or in the riot itself and further denying that they had anything to do with the destruction of county property.

Defendant’s main contention on appeal is that the trial court erred in denying his motion for judgments of acquittal made at the conclusion of the State’s case. The basis of the contention is that there was no direct evidence that he had participated in the destruction of county property or that he had physically and directly assisted the three prisoners to escape. He further argues that his motion should have been granted as to the violation of N. J. S. A. 2A:104-7 because there was no evidence from which the jury could find that he had a specific intent to assist the escape.

N. J. S. A. 2A:148-10 states in part:

Any person who, in public or private, by speech, writing, printing or otherwise, advocates, encourages, justifies, praises or incites:
a. The unlawful burning or destruction of public or private property ; or * * *.

The actual destruction of public property need not occur to support a conviction for a violation of that statute. The essential element of the crime is incitement to destruction of property rather than the actual destruction of property. State v. Quinlan, 86 N. J. L. 120 (Sup. Ct. 1914), aff’d o. b. 87 N. J. L. 333 (E. & A. 1915).

Commonwealth v. Hayes, 205 Pa. Super. 338, 209 A. 2d 38 (Super. Ct. 1965), concerned a charge similar to what is befoie us. The court in dealing with an incitement to riot indictment stated:

Inciting to riot is not a statutory offense in Pennsylvania but it is a common law crime. “Inciting to riot, from the very sense of the language used, means such a course of conduct, by the use of words, signs or language, or any other means by which one can be urged on to action, as would naturally lead, or urge other men to engage in or enter upon conduct which, if completed, would make a riot.” Commonwealth v. Merrick et al., 65 Pa. Super. 482 at 491, 209 A. 2d at 39.

The acts of the defendant in pushing his way out of the cell block yelling to the other prisoners to come out and that he was taking over the jail and that he was going to “break this place up” were sufficient to> sustain a finding of guilt by the jury of a violation of N. J. S. A. 2A:148-10 subd. a. State v. Boyd, 86 N. J. L. 75, 80 (Sup. Ct. 1914), aff’d o. b. 87 N. J. L. 328 (E. & A. 1915); Commonwealth v. Apriceno, 131 Pa. Super. 158, 198 A. 515 (Super. Ct. 1938).

N. J. S. A. 2A :104-7 provides in part:

Any person who aids or assists a prisoner in any jail * * * to make or attempt to make his escape from any such institution * * * is guilty of a misdemeanor.

To be guilty of this provision it is not necessary to show that a defendant actually participated in an escape or that he intended to aid an escape. The State need not allege or prove a specific intent.

In People v. Vraniak, 5 Ill. 2d 384, 125 N. E. 2d 513 (Sup. Ct. 1955), cert. den. 349 U. S. 963, 75 8. Ct. 895, 99 L. Ed. 1285 (1955), the court in construing a similar statute held that “intent was not a material element of the crime and need not have been alleged.” 125 N. E. 2d at 517. In a later habeas corpus proceeding, United States ex rel. Uraniak v. Randolph, 261 F. 2d 234 (7 Cir. 1958), cert. den. 359 U. S. 949, 79 S. Ct. 733, 3 L. Ed. 2d 681 (1959), the Circuit Court of Appeals agreed with the Illinois Supreme Court’s analysis of the statute there involved, stating:

The general rule is that, to constitute a crime, the act must (except in eases of malum, prohibitum, which is irrelevant here) be accompanied by a criminal intent. 22 C. J. S. Criminal Law §§ 29, 30, pp. 84, 86. The exception to the general rule is where a specific intent is an element of a crime, in which case the specific intent must be proved as an independent fact and cannot be presumed from the commission of the unlawful act. 22 C. J. S. Criminal Law § 32, p. 91.
Under the general rule, the intent to commit crime may be implied from the established facts. The accused is presumed to know and to intend what he does. When Vraniak fashioned an opening through which he might escape from the jail, he was bound to know that other prisoners might use the same means of exit. It was not necessary that he should know the identity of those who might follow him. He created the opening which was a standing invitation to any who would rather be on the outside than on the inside. Thus he aided the attempted escape of LaCoeo and others. [261 F. 2d at 237]

The defendant’s acts of breaking out of Ms cell block, opening the other cell blocks and attempting to take over the prison aided the escapo as he should have known his acts would. They put in motion a chain of events which led directly to the escape.

The motion for judgments of acquittal was properly denied.

On rebuttal the State called a Marvin Kirk, who had been a fellow inmate at the time of the riot. It had been the State’s intention to call Kirk on its direct case. However, he was no longer confined and could not be located by the State in time to be called on the direct case. The defendant argues that it was prejudicial error to permit Kirk to testify as a rebuttal witness. The admission of rebuttal testimony is within the trial court’s discretion. In the absence of gross abuse, the exercise of such discretion will not be disturbed. State v. Balles, 47 N. J. 331, 343 (1966), app. dism. and cert. den. 388 U. S. 461, 87 S. Cl. 2120, 18 L. Ed. 2d 1321 (1967); State v. Provoid, 110 N. J. Super. 547, 557 (App. Div. 1970). The trial judge specifically found that Kirk’s testimony was proper rebuttal. We see no abuse of discretion, particularly because there is no intimation that the State intentionally withheld Ms testimony. See State v. DeRocco, 53 N. J. Super. 316, 324 (App. Div. 1959).

It is further urged that prejudicial error was committed because Kirk testified to a conversation between Hopps and one of the escapees in which the escapee asked Hopps to create some kind of disturbance which would allow an escape. When this testimony was adduced, both defendants' objected. In overruling the objection the trial court stated, “and while this defendant [the witness] can hardly be used against the defendant Herbert Cooper because it hasn’t shown [sic] that Herbert Cooper was present, certainly, it is admissible against Carlton Hopps.” Ho request was made by the defendant for any additional or specific instruction to the jury. Defendant considered at the trial and now considers in his brief that such statement by the court was a cautionary instruction. In view of the failure of the defendant to specifically request a more detailed instruction to the jury, we find no plain error. State v. Corby, 28 N. J. 106 (1958); State v. Provoid, 110 N. J. Super. 547, 556, supra.

The other points urged by the defendant, that error was committed in the admission of certain photographs and a broken window lock, that the verdict was against the weight of the evidence and that the sentences were excessive, are without merit.

The judgments of conviction are affirmed.


source: Caselaw Access Project

author: Collester, J. A. D.

license: Public Domain

text:
    PETER VANNUCCHI, PLAINTIFF-RESPONDENT, v. SUSAN VANNUCCHI, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued October 5, 1970
    Decided January 15, 1971.

      Before Judges Sullivan, Collester and Labrecque.

      Mr. Richard 8. 8emel argued the cause for appellant.

      Mr. R. M. James Ruscick argued the cause for respondent.
   The opinion of the court was delivered by

Collester, J. A. D.

Defendant appeals from a judgment entered in the Chancery Division which awarded plaintiff custody of their four-year-old child and dismissed defendant’s counterclaim for custody. The judgment also denied plaintiff’s application to restrain defendant from proceeding with a divorce action she had instituted against plaintiff in Illinois.

The parties were married in Yonkers, New York, on February 6, 1965. They lived for a short period of time in Now Jersey where John Vannucchi, the only child of the marriage, was born on July 26, 1965. In September 1966 they moved to Chicago where a family residence was maintained. In the fall of 1967 marital difficulties arose between the parties. In September and on December 31, 1967 plaintiff allegedly beat Ms wife, and thereafter she conferred with an attorney concerning the institution of proceedings for divorce. On January 7, 1968 plaintiff left Chicago and went to Ms parents’ home in New Jersey, taking the child with Mm. He returned the child to the mother in Chicago on March 9, 1968.

In January 1968 defendant brought proceedings in Illinois for divorce on the ground of extreme cruelty and for custody of the child. Plaintiff entered a general appearance and subsequently filed an answer in which he denied the allegations of the complaint, other than the fact of marriage and Mxth of the child, and asserted an affirmative defense of condonation.

In June 1968 plaintiff, with defendant’s consent, brought the child to New Jersey to visit the child’s grandparents. However, plaintiff thereafter did not return the child to the mother as agreed. On September 5, 1968 plaintiff filed his present complaint in the Chancery Division seeking custody of the child and a judgment restraining defendant from proceeding with her divorce action. He secured an order to show cause with an ad interim restraint, which was served upon defendant on September 12. On September 18, 1968, following a contested hearing, the Illinois court awarded temporary custody of the child to his mother, directed plaintiff herein to return the child forthwith, enjoined him from proceeding in any other jurisdiction, and awarded the mother alimony pendentei lite.

On October 11, 1968, the return day of the order to show cause in the New Jersey action, defendant did not appear. A default judgment was entered which awarded custody of the child to the father, permanently enjoined the mother from proceeding with her matrimonial action in Illinois, and adjudged her to be in contempt of court. Defendant’s motion to vacate the default judgment was denied, and she appealed. On June 16, 1969 this court reversed the judgment of the Chancery Division and remanded the case, directing the trial court to permit defendant to file such pleadings as she deemed appropriate, to hear testimony and make specific findings of fact and conclusions of law as to whether New Jersey should entertain the plaintiff’s suit in the light of the circumstances of the case and, if so, to whom custody of the child should be awarded.

Defendant thereafter filed her answer and counterclaim in which she alleged that the parties were residents and domiciliaries of Illinois; that New Jersey courts lacked jurisdiction over the persons of defendant, the infant child of the marriage and the subject matter of the litigation; that proceedings for divorce and custody of the child were pending in Illinois, to which plaintiff had entered a general appearance, and that the Illinois court had awarded temporary custody of the child to defendant and ordered plaintiff to return the child. Defendant sought a judgment dismissing the complaint, awarding her custody of the child and ordering plaintiff to deliver custody to her in Illinois.

At the conclusion of an 11-day trial the trial judge awarded custody of the child to plaintiff but denied plaintiff’s action to restrain defendant from proceeding with the divorce action in Illinois. He dismissed defendant’s counterclaim for custody. In reaching his decision the judge held that, notwithstanding the order of the Illinois court awarding temporary custody of the child to defendant, the court had jurisdiction to determine the issue of custody under the parens patriae doctrine; that the intent of plaintiff was to continue New Jersey as his domicile, and the child was likewise domiciled here; that jurisdiction of the New Jersey court as to custody was not abrogated because service in the Illinois divorce proceeding was made on plaintiff in this State while the child was physically present in Illinois, nor by the order of the Illinois court granting temporary custody to the mother pending the divorce hearing. The judge further implicitly found that defendant was an unfit person to have custody of her child and that its best interests would be served by awarding custody to the father. Defendant appealed.

At oral argument we were informed that the Illinois court, following a contested hearing, had granted defendant a final decree of divorce. The decree, entered on February 8, 1910, provided that the issue of custody would be reserved for future consideration of that court following the determination of this appeal.

Defendant first argues that the Chancery Division lacked jurisdiction to determine the issue of custody because the Illinois court had prior jurisdiction over the parties and subject matter; that its orders are entitled to full faith and credit in New Jersey, and that the Illinois court’s order of custody is res judicata. Alternatively, defendant argues that the Chancery Division should have declined to accept jurisdiction under the circumstances of this case; that it should not have invoked the doctrine of parens patriae where the physical custody of the child was obtained unlawfully and the unlawful taking of the child violated the public policy of this State, and that the court should have entered a protective order requiring plaintiff to return the child to his mother. in Illinois.

It is undisputed that plaintiff entered a general appearance in the Illinois proceedings and contested the suit for divorce and custody of the child brought by his wife. His participation in those proceedings gave that state authority to adjudicate the respective personal rights of the parties in the matter of custody. Casteel v. Casteel, 45 N. J. Super. 338, 349-350 (App. Div. 1957). Where there is a voluntary submission to a foreign jurisdiction there is no ground for intervention by New Jersey courts, unless there is a special equity justifying such relief notwithstanding defendant’s appearance therein. Stultz v. Stultz, 15 N. J. 315, 319 (1954).

The crucial issue in this ease is whether the Chancery Division should have declined to invoke its parens patriae jurisdiction under the circumstances which existed. There was pending before the Illinois court defendant’s suit for divorce and custody to which plaintiff had entered a general appearance when plaintiff, with his wife’s consent, brought the child to New Jersey ostensibly to visit at the grandparents’ home. Thereafter, instead of returning the child to the mother as agreed, he filed his complaint in the Chancery Division seeking to have the court invoke its parens patriae jurisdiction in order to obtain custody of the child. It is clear that he did so in order to avoid a judicial determination of the issue of custody in the Illinois court, which had jurisdiction over the parties and the subject matter.

There is no question but that the Chancery Division has authority under its parens patriae jurisdiction to regulate the custody of an infant found within the State, and that such jurisdiction does not depend upon the domicile of the parents. That authority has its origin in the protection that is due to the incompetent or helpless and is firmly established in our jurisprudence. Fantony v. Fantony, 21 N. J. 525, 535 (1956). However, in our view it should not be invoked as a means to obstruct the judicial processes of a sister state when that state has previously acquired jurisdiction to pass on the issue of the infant’s custody. To permit it to be used for such a purpose would sanction a race to the court houses of different states and multiplicity of litigation.

The trial judge’s conclusion that defendant, who had been granted custody pendente lite by the Illinois court, was unfit to have custody of her child, was based primarily on evidence ostensibly offered to impeach her credibility. Such evidence indicated, among other things, that defendant had been involved in an illicit affair with a married man before she married plaintiff, and further, that she had engaged in premarital relations with plaintiff himself. That evidence was clearly irrelevant and improper. Whether defendant was unfit to have custody of her child should have been based on evidence of her character, conduct and fitness following her marriage to plaintiff.

In the exercise of their parens patriae jurisdiction our courts look always to the protection of the child’s best interests —• the happiness and welfare of a child are paramount in determining custody. DiBiano v. DiBiano, 105 N. J. Super. 415, 418 (App. Div. 1969). While the rights of both parents are held to be equal, it is well recognized that custody of a child of tender years ordinarily is awarded to the mother if she is a fit and proper person. Esposito v. Esposito, 41 N. J. 143, 145 (1963); Sheehan v. Sheehan, 51 N. J. Super. 276, 290-291 (App. Div.), certif. den. 28 N. J. 147 (1958).

We have carefully reviewed the record of this lengthy trial and find no evidence which would justify a finding that defendant was unfit to have custody of her child. In this connection it is to be noted that while plaintiff claimed that defendant was an unfit mother, he voluntarily turned custody of the child over to her in March 1968, after which he returned to his parents’ home in New Jersey. Plaintiff resides with his parents in Cliffside Park and daily attends a podiatry college in New York City. While plaintiff is in school the child is in the care of plaintiff’s mother. We note that neither of plaintiff’s parents saw fit to testify at the trial concerning the health or welfare of the child.

In Hachez v. Hachez, 124 N. J. Eq. 442 (E. & A. 1938), the court invoked its parens patriae jurisdiction in the case of a child of foreign nationals, present in New Jersey enroute from Cuba to Germany, for the purpose of lending enforcement on grounds of comity to a foreign judgment of custody. The court said:

Reason dictates that a decree for custody, not tainted by a jurisdictional lack, shall be given everywhere the same recognition and effect that it receives in the state of its origin. Being conclusive of the status of the infant, and of the right of custody, at the time of its rendition, the decree should, in the absence of intervening substantial change, be accorded the same authority in other jurisdictions * * *. [at 447]

While Hachez involved a final decree of divorce entered in a Cuban court of competent jurisdiction which had awarded custody to the mother, and the instant case involves a temporary order of custody by an Illinois court having jurisdiction, it seems to us that the rationale of Hachez should govern. In our view, the parens patriae jurisdiction of our courts should be invoked when a child is temporarily in the State only if necessary to protect the child from an unfit custodian or to serve some limited purpose, as in Hachez. Casteel v. Casteel, supra, at 349. We should hold aloof when intervention is unnecessary for the welfare of the child. See also Morrison v. Morrison, 93 N. J. Super. 96, 98-99 (Ch. Div. 1966).

Por the above reasons we are satisfied that the trial court erred in exercising its parens patriae jurisdiction to award custody of the child to plaintiff contrary to the provisions of the prior order of the Illinois court. The judgment is reversed and a judgment will be entered in conformity with the order of the Illinois court awarding temporary custody to defendant pending determination of the issue of permanent custody hy that court.

Reversed and remanded for further proceedings in accordance with this opinion.


author: Lynch, J. S. C.

text:
    K & J CLAYTON HOLDING CORP., A NEW YORK CORPORATION, PLAINTIFF, v. KEUFFEL & ESSER COMPANY, A NEW JERSEY CORPORATION, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided January 6, 1971.

      Mr. H. Lee Sarokin for plaintiff (Messrs. Lasser, Lasser, Sarokin & Hochman, attorneys).

      Mr. Clyde M. Noll for defendant (Messrs. Bourne and Noll, attorneys).
   Lynch, J. S. C.

Plaintiff K. & J. Clayton Holding Corp. (K & J), a corporation of the State of New York, seeks specific performance of a contract for the purchase of real estate pursuant to an agreement entered into in its name as buyer, but executed prior to its incorporation. Defendant “seller” contends that there was no binding contract because (a) plaintiff was not in existence at the time the agreement was executed, and (b) “lack of mutuality” at that time deprives the agreement of enforceability.

The facts have been stipulated and the parties file cross-motions for summary judgment.

In August 1969 defendant Keuffel & Esser Company (K&E) signed an agreement to sell certain property owned by it in Hoboken, New Jersey, for a purchase price of $750,000. The agreement was signed in plaintiff’s name as buyer “by Benjamin Cohen, President.” A check in the amount of $10,000 was received by K & E at or prior to the execution of the written agreement, $640,000 was to be paid upon delivery of the deed, and the remaining $100,000 was to be secured by a bond and purchase money mortgage of the premises. The instrument further provided for a lease back to K &> E. At the time said instrument was executed no certificate of incorporation had been filed for plaintiff. A certificate was subsequently filed with the New York Secretary of State on October 31, 1969.

The agreement provided for a closing date of Hovember 3, 1969. On that date the president of K & E wrote a letter to the attorney for K&J, stating that it had been discovered that incorporation papers had not been filed by K & J and that K&E considered that the purported written agreement was a nullity. Specifically, it was stated that “any contract for the sale of property purportedly entered into by a nonexistent New York corporation under the name of K&J Clayton Holding Corp. * * * with Keuffel & Esser Company for the purchase from K&E of K&E’s premises in Hoboken, New Jersey never existed and the contract is a complete nullity.” A certified check returning the deposit of $10,000 .was enclosed with the said letter.

Under date of Hovember 18, 1969 K&E received a letter, dated Hovember 13, 1969, from the attorney for K & J. It stated that K&J was ready, willing and able to close the title, that K&J would be present at the offices of K & E in Morristown, New Jersey, at 10 a.m., December 1, 1969, for the purpose of closing title and that time was of the essence. Representatives of K & E, K & J and Archie Schwartz Company, a broker,. together with their attorneys and a representative of American Title Insurance Company, met at the K & E offices on December 1, .1969. K & J’s attorney stated that his client was ready, willing and able to close pursuant to the terms of the agreement. He offered a treasurer’s check of the Trade Bank and Trust Company of New York City in the amount of $650,000 in payment of the cash provision of the agreement and offered to fulfill all the terms of the agreement on its part to be performed. A representative reiterated K & E’s contention that there was no valid and existing agreement between K & E and K &■ J for the reason stated in its letter of November 3, 1969, and that K & E refused to close title. Defendant asserts no other reason for claiming the contract a nullity and does not claim any- defect in the notice or tender made by plaintiff.

The fact is that there toere two parties to this contract at the time of its execution. The agreement was signed on behalf of the buyer by the purported president of the embryonic or proposed corporation. As such he was a “promoter.” Whether or not the Corporation were later to “adopt” the contract, a promoter could be held liable thereon. See Note> “Promoters’ Contracts: A Statutory Solution,” 15 Rutg. L. Rev. 566, 573 (1961); 1 Fletcher, Cyclopedia of Corporations, § 215. Thus, defendant was not without a fellow contracting party against whom it could have enforced the agreement.

In the context of a promoter having executed the contract, the corporation later coming into existence, the corporation is entitled to all the rights thereunder as well as assuming full liability therefor. 1 Fletcher, op. cit., § 214, at 836-837. Even though the embryo corporation was not able to contract, yet it could adopt a contract made for its benefit. Ibid., §§ 207, 208. Having adopted the contract, the corporation may then sue for its enforcement. Cf. African Methodist Episcopal Church v. Conover, 27 N. J. Eq. 157 (Ch. 18 76); Builders Duntile Co. v. W. E. Dunn Mfg. Co., 229 Ky. 569, 17 S. W. 2d 715 (Ct. App. 1928), 1 Eleteher, op. cit. § 214; 2 Williston on Contracts (3d ed.), § 306 at 431, n. 18. One mode of adopting the contract is the institution of suit thereon by the corporation. Note, 15 Rutg. L. Rev. 566, at 572. Among the remedies available on such a suit is specific performance. 1 Fletcher, op. cit., supra, § 214 at 838, n. 46.

However, defendant persists in the assertion of “lack of mutuality.” That concept has been the object of repeated judicial attempts to inter it. As stated in 11 Williston, op. cit., § 1433 at 883:

Rule of Mutuality of Remedy as Formerly Stated. Formerly, little or nothing in the law of specific performance gave rise to such confusion as the so-called rule requiring mutuality of remedy if the plaintiff was to be entitled to specific performance. The rule has been stated in the following terms:
A contract to be specifically enforced by the court must, as a general rule, be mutual, — that is to say, such that it might at the time it was entered into, have been enforced by either of the parties against the other of them. Whenever, therefore, whether from personal incapacity to contract, or the nature of the contract, or any other cause, the contract is incapable of being enforced against one party, that party is generally incapable of enforcing it against the other, though its execution in the latter way might in itself be free from the difficulty attending its execution in the former.
1,1! í¡í * * *
While this “rule” had some significance some few decades ago, it has been quite generally repudiated, especially as the exceptions gradually swallowed it.

As stated in Fleischer v. James Drug Stores, 1 N. J. 138 (1948):

It is not essential that the remedy of specific performance be mutual. Mantell v. International Plastic Harmonica Corporation, supra. The modern view is that the rule of mutuality of remedy is satisfied if the decree of specific performance operates effectively against both parties and gives to each the benefit of a mutual obligation. Walter v. Hoffman, 267 N. Y. 365, 196 N. E. 291 (1936), 101 A. L. R. 919. Judge Cardozo said:
What equity exacts today as a condition of relief is the assurance that the decree, if rendered, will operate without injustice or oppression either to plaintiff or to defendant. * * * Mutuality of remedy is important in so far only as its presence is essential to the attainment of that end. The formula had its origin in an attempt to fit the equitable remedy to the needs of equal justice. We may not suffer it to petrify at the cost of its animating principle.’ Epstein v. Gluckin, 223 N. Y. 490, 1.35 N. E. 861 (1922). [at 149]

In Morad v. Silva, 331 Mass. 94, 117 N. E. 2d 290 (Sup. Jud. Ct. 1954), it was said that “despite the fact that most of our decisions are in harmony with the modern rule, the ghost of mutuality still walks and, until laid, will continue to haunt our law.” Willision concludes that the so-called rule of “mutuality of remedy” has gradually fallen into an “innocuous desuetude,” and “its broader statements and implications have been generally discredited.” And in Restatement, Contracts, § 372 at 677 (1932), the rule as to mutuality of remedy is stated thus:

(1) The fact that the remedy of specific enforcement is not available to one party is not a sufficient reason for refusing it to the other party.

In any event, the question is not whether mutuality existed at the time of the contract; it is enough that there is mutuality at the time of the decree or judgment. Gottlaub v. Cohen, 139 N. J. Eq. 323 (Ch. 1947); Horton v. Horton, 2 N. J. Super. 155 (Ch. Div. 1948). And filing a bill for specific performance oí a land sale contract satisfies the requirement for mutuality of obligation. Teitleman v. Porter-Smith Co., 103 N. J. Eq. 412 (E. & A. 1928); Rapps v. Tulenko, 102 N. J. Eq. 207, 211 (Ch. 1928); Kamens v. Anderson, 99 N. J. Eq. 490 (Ch. 1926); South Jersey Furniture Corp. v. Dorsey, 95 N. J. Eq. 530, 535 (Ch. 1924), aff’d 99 N. J. Eq. 433 (E. & A. 1925); Cohen v. Pool, 84 N. J. Eq. 77 (Ch.), aff’d 84 N. J. Eq. 189 (E. & A. 1914); Krah v. Wassmer, 75 N. J. Eq. 109 (Ch. 1908), aff’d sub nom. Krah v. Radcliffe, 78 N. J. Eq. 305 (E. & A. 1911); Green v. Richards, 23 N. J. Eq. 32, 35 (Ch.), aff’d sub nom. Richards v. Green, 23 N. J. Eq. 536 (E. & A. 1872).

In Cottlaub v. Cohen, supra, Vice-Chancellor Bigelow pointed out that his research had discovered only one clear case in which specific performance had been denied for lack of mutuality, viz, Burlew v. Hepps, 138 N. J. Eq. 425 (Ch. 1946), rev’d 2 N. J. Super. 336 (Ch. Div.), rev. aff’d 6 N. J. Super. 16 (App. Div. 1949). The learned vice chancellor cited many cases where the remedy had been granted “although, at the time the contract was made, the opposite party could not have maintained an action against the complainant.” Gottlaub, at 139 N. J. Eq. 324. He went on to note that there had been a number of cases wherein specific performance was denied and in which “there is mention of mutuality,” but the denial of the remedy rested on other reasons. Id. at 325. Among them were cases wherein the contract was not one of the class which will be specifically performed, e. g., suits involving personal services or in which the defendant would have only an action for damages if complainant should thereafter breach the contract.

Vice-Chancellor Bigelow therefore rejected the decision of Vice-Chancellor Lewis in Burlew v. Hepps, supra, and held:

According to the great weight of our authorities, specific performance will not be refused merely because the contract, at the time it was entered into, could not have been enforced by the defendant against the complainant. * * * It is enough that there is mutuality at the time of the decree. [Gottlaub, 139 N. J. Eq. at 325]

After that decision, rehearing was had in Burlew v. Hepps before another Chancery judge, Vice-Chancellor Lewis having died in the meantime. Specifically following Gottlaub v. Cohen, Judge Grimshaw granted specific performance, 2 N. J. Super. 336 (Ch. Div.), aff’d 6 N. J. Super. 16 (App. Div. 1949). In Horton v. Horton, supra, Judge Freund likewise expressly rejected the first decision in Burlew v. Hepps, saying that Gottlaub v. Cohen had “overruled” (sic) it and in doing so had stated the correct rule of law in holding that it is enough that there is mutuality “at the time of the decree.” Horton, supra, 2 N. J. Super. at 157-158.

One case deserving of comment, however, is Macy Corp. v. Ramey, 75 Ohio Law Abst. 334, 144 N. E. 2d 698 (Com. Pl. 1957). In Macy specific performance was denied to a buyer corporation which was not in existence at the time of the contract but was de jure at the time of the suit. Insofar as the decision relies on the asserted “mutuality of remedies” theory, I reject it as being flatly contrary to New Jersey law as set forth in Gottlaub v. Cohen, supra. Defendant there had repudiated the contract before Macy wes incorporated. Not so here. Further, throughout the Macy decision there pervade the equitable concepts of unclean hands, overreaching and fraud on the part of plaintiff corporation. There are no such stains on plaintiff’s part here and, since defendant is getting all it bargained for, the equities lie with plaintiff.

In the instant attempt to inter the ghost of mutuality, it might do well to consider the reason for the rule even when it was recognized. In Note, 6 Univ. of Newark L. Rev. 287, 289 (1941), it was said:

The principal reason for the rule, was that equity would not compel specific performance by the defendant if after performance the common law remedy of damages would be his sole security for the performance of plaintiff’s part of the contract.

And the note goes on:

The new mutuality doctrine, or as some writers contend a better interpretation of the old rule, lays down as the real test the question as to whether the defendant is reasonably assured that after his performance he will receive what he contracted for [Emphasis added]

11 Williston, op. cit., § 1433, at 886, quotes the following from the case of Schultz v. Campbell, 147 Mont. 439, 413 P. 2d 879 (Sup. Ct. 1965) :

The old doctrine that mutuality of remedy must exist from the time a contract was entered into has been so qualified as to be of
little, if any, value, and many authorities have recognized that the only important consideration is whether a court of equity which is asked to specifically enforce a contract against the defendant is able to assure that he will receive the agreed performance from the plaintiff [Emphasis added]

And this is the test which we must apply here. Defendant’s attempt at avoidance of the contract is based, to borrow a phrase, on a “hypothetical horrible,” namely, that if defendant had attempted to enforce the contract against the plaintiff before the latter’s incorporation, it could not have done so. As we have stated above, the contract could have been enforced against the promoter. In any event, plaintiff was in fact incorporated before the date when defendant was entitled to performance. Of more specific significance, defendant contracted to sell the property for $750,000, of which $650,000 was to be in cash, the balance to be secured by a purchase money second mortgage and there was to be a lease back to defendant from plaintiff. Plaintiff effectively offered to fulfill all of these terms on December 1, 1969, and of course must do so if specific performance is granted to it in this case. Defendant here is getting everything it bargained for. It is losing nothing. And it is perfectly secure. Indeed plaintiff has waived its right to make defendant’s purchase money mortgage subject to a prior first mortgage in the amount of $500,000, and has agreed that defendant’s mortgage for $100,000 is to be the first lien.

Plaintiff’s motion for summary judgment is granted and that of defendant is denied. ETo costs.

       See also Silverstein v. Abco Vending Service, 37 N. J. Super. 439, 448 (App. Div. 1955), and Sarokhan v. Fairlawn Memorial Hospital, Inc., 83 N. J. Super. 127, 135 (App. Div. 1964). In Silverstein the question of specific performance was by-passed pending final hearing on remand; while Sarohhan involved a contract for personal services, traditionally not enforceable by means of specific performance.

       Cf., Anderson v. Sills, 56 N. J. 210, 218 (1970).


author: Joelson, J. S. C.

text:
    LOUIS KESSLER, PLAINTIFF, v. CITY OF PASSAIC A MUNICIPAL CORPORATION, AND ANTHONY C. MARTINI, PUBLIC OFFICER, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided January 4, 1971.

      Mr. Robert H. Kessler, attorney for plaintiff.

      Mr. August G. Michaelis, attorney for defendants.
   Joelson, J. S. C.

Plaintiff is the owner of a multiple-dwelling property which was placed under rent control in the City of Passaic by Anthony C. Martini as Public Officer of the municipality for the administration of rent control. Martini also serves as City Clerk of Passaic. Plaintiff brings this action to have declared invalid the designation of City Clerk Martini as Public Officer for the administration of rent control in that community, and to have the position declared vacant. He bases his contention on the fact that the designation was made by the Passaic city council rather than the city manager.

The facts are not in dispute. On November 22, 1966 the board of commissioners of Passaic passed an ordinance authorizing the regulation of rents pursuant to the enabling legislation provided by N. J. S. A. 2A :42-74 et seq. Thereafter, in 1967, the voters of Passaic adopted a council-manager form of government, and it is undisputed that the city council replaced the board of commissioners as the governing body of the municipality.

In the November 22, 1966 rent control ordinance the board of commissioners provided in section 1A with respect to the public officer designated to administer it that ‘“Public Officer’ shall mean the Assistant Health Officer of the City of Passaic or any other city employees so designated by resolution adopted by the Board of Commissioners.”

Subsequently on August 7, 1969, the new governing body, the city council, adopted a resolution (No. 260-69) which relieved the assistant health officer by name and provided that “Anthony C. Martini is hereby designated and appointed Public Officer in conformance with and under the original jurisdiction of” the rent control ordinance. In the “whereas” provisions of that resolution which preceded the designation of Martini, we find that the city council referred to the fact that section 1A of the rent control ordinance had defined public officer as the assistant health officer or any other city employee so designated by resolution. It then went on to state as follows before designating Martini by name as the public officer:

Whereas, the City Clerk, Anthony C. Martini is an employee of the City of Passaic whose functions and duties come within the purview of the ordinance entitled “An Ordinance Authorizing the Regulations of Rents * * * Designating a Public Officer and Defining his Duties * * *.”

Martini has been serving since August 7, 1969.

The court will now deal with plaintiffs contention that the new public officer should have been designated by the city manager rather than the city council in August 1969. lie grounds this contention on the Administrative Code of Passaic (Ordinance No. 1-67), which was adopted pursuant to the Optional Municipal Charter Law, and specifically upon N. J. S. A. 40:69A—95(c) which gives broad powers of appointment to the city manager.

There is no doubt that both N. J. S. A. 40:69A-95 (c) and the Administrative Code indicate sweeping powers, including the power of appointment generally, in the city manager to the exclusion of the city council. However, it is the opinion of the court that the controlling factor must be N. J. S. A. 2A:42-74 et seq., which is the enabling legislation for municipal rent control. N. J. S. A. 2A:42-75(a) provides:

“Public Officer” shall mean the officer, officers, board or body who is or are authorized by ordinances adopted hereunder to exercise the powers prescribed by such ordinances and by this act. [Italics supplied]

The above-quoted subsection clearly states that the public officer shall be authorized by ordinances. It is a well-settled rule that full effect must be given to every word of a statute, and that it cannot be assumed that the Legislature used meaningless language. Gabin v. Skyline Cabana Club, 54 N. J. 550 (1969). The statute uses the word “ordinances,” and a city manager cannot enact an ordinance. Only the appropriate governing body can do so, and under the form of government of the City of Passaic, the city council is the governing body. Thus, the power of designation of the public officer must be held to reside with the city council and not the city manager.

It should also be noted that the Optional Municipal Charter Law upon which plaintiff relies antedates the rent control enabling legislation by 16 years, the former having been enacted in 1950 and the latter in 1966. It has often been held that the Legislature is presumed to be aware of its own enactments, and that subsequent laws are made with knowledge of previous ones. Wilson v. Robert A. Stretch, Inc., 44 N. J. Super. 52 (Ch. Div. 1957); Eckert v. N. J. State Highway Department, 1 N. J. 474 (1949); Goldberg & Co. v. Division of Employment Security, 21 N. J. 107 (1956). It is also recognized that “where there is a seeming conflict between a general statute and a specific statute covering a subject in a more minute and definite way, the latter shall prevail over the former and will be considered an exception to the general statute.” Goff v. Hunt, 6 N. J. 600 (1951). See also Hackensack Water Co. v. Division of Tax Appeals, 2 N. J. 157, 165 (1949).

There is a more troublesome question not originally raised by plaintiff, but on which the court has requested the parties to submit briefs. That question revolves around the fact that the city clerk was designated as the public officer by resolution of the city council rather than by ordinance of that body.

It is well settled that when a statute provides that an action be taken by ordinance, a mere resolution will not suffice. Chasis v. Tumulty, 8 N. J. 147, 153 (1951); Roselle v. South Orange, 21 N. J. Super. 598 (App. Div. 1952); Mc Laughlin v. Millville, 110 N. J. Super. 200 (Law Div. 1970). However, in the instant case, an ordinance was enacted which designates the public officer as the assistant health officer of Passaic “or any other city employee so designated by resolution adopted by the Board of Commissioners.” Defendants now contend that since the resolution in question was an outgrowth of the ordinance and was authorized by the ordinance, the action taken pursuant to the resolution should be held valid. In support of this contention, defendants cite Kanter v. Passaic, 107 N. J. Super. 556 (Law Div. 1969).

It is true that in Kanler there is some discussion by the court as to the validity of an ordinance which provides for its own amendment by subsequent resolution. However, the court after such discussion specifically stated that the issue was “rendered moot” because Passaic could rely on a corrective ordinance enacted by the city subsequent to the resolution. This court is of the opinion that if Passaic believes that it can properly adopt a general pattern of providing for the subsequent amendment of ordinances by resolutions, it should be disabused of that belief —• especially in a case such as this where the enabling act itself demands an ordinance as to all essential elements.

An extended discussion of the difference between an ordinance and a resolution is not necessary. Suffice it to say that the former provides more adequate protection to the public because it requires publication and an opportunity for the public to be heard. The enabling act, N. J. S. A. 2A:42-74 et seq., calls for the ordinance route, and its intent should not be permitted to be disregarded.

In a preliminary opinion in this matter this court suggested that the city “might well consider taking immediate steps to designate a public officer by ordinance in order to obviate any further question.” Since plaintiff has conceded that the rent control activities of the city clerk were performed under color of office and has abandoned his request to have the city clerk’s actions declared null and void, the court believes that the city should still have a short additional time to enact a proper amendatory ordinance if it wishes to do so.

The city has adopted a rent control ordinance and apparently wishes to continue its operation. The ordinance serves the valuable social purpose of impelling an owner of

substandard multiple-dwelling property either to repair it or collect lesser rents. Obviously, the program cannot function without an officer to administer it. The court will give the city 60 additional days to designate the public officer of its choice properly by amendment to its original ordinance.

As to the contents of the amendment, it should not designate an individual by name, as the resolution in question attempted to do. In order to comply fully with the statutory requirements, it should designate a public officer by title since this appears to be the intention of the Legislature in its definition of the term “Public Officer” in N. J. S. A. 2A:42-75(a).

The court must still deal with the problem of what the status of the matter will be in the event that the city does not act within 60 days. Plaintiff’s attorney seeks to have the position of public officer declared vacant. However, the rent control ordinance of November 22, 1966 designates the assistant health officer as public officer. Therefore, if the city does not take action within 60 days, the duties of public officer will devolve upon the assistant health officer serving at such time or whoever may be properly designated as assistant health officer in the future.

In view of the foregoing, plaintiff’s attorney shall submit an order accordingly. The 60-day period hereinabove referred to shall run from the date of the signing of such order.


author: Convery, J. S. C.

text:
    RUTGERS, THE STATE UNIVERSITY, PLAINTIFF, v. STEPHEN PILUSO, BUILDING INSPECTOR OF THE TOWNSHIP OF PISCATAWAY, THE BOARD OF ADJUSTMENT OF THE TOWNSHIP OF PISCATAWAY, AND THE TOWNSHIP COMMITTEE OF THE TOWNSHIP OF PISCATAWAY, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided January 11, 1971.

      Mr. Clyde A. Szuch for plaintiff (Messrs. Pitney, Hardin & Kipp, attorneys).

      Mr. Joseph Stevens for defendants Piluso and Piscataway Township (Messrs Roth & Stevens, attorneys)

      Mr. Geza A. Stamberger, Jr., for defendant Board of Adjustment.
   Convery, J. S. C.

This is an action in lieu of prerogative writs instituted by Rutgers, The State University (Rutgers), seeking a declaration that it is not subject to Piscataway Township’s zoning ordinances. Pursuant to the provisions of the pretrial order, plaintiff moves for summary judgment on one of the counts of the complaint which seeks an adjudication of immunity. The Attorney Gen'eral has been advised of this action and has previously received copies of the pretrial order and the memoranda on the motion for summary judgment.

The board of governors of Rutgers determined to erect 374 garden-type apartment units on property owned by Rutgers in Piscataway. The testimony before the board of adjustment revealed that these proposed units are one-bedroom and two-bedroom units and are to be used, depending on need and demand, for married students and their families or for single students. These proposed units are in Piscataway’s ER-Education and Research zone.

In March 1964 Piscataway adopted a zoning ordinance which defined the uses specifically permitted in the Education and Research Zone, among others the following:

Dormitories for matriculated students; dormitories and other housing facilities for use by matriculated students and their families, provided, however, that such facilities do not exceed five hundred (500) units. [Art. XV, § 1, (B), 3(A) (iii)]

Rutgers already has approximately 500 apartments for use by matriculated students and their families in this zone.

Rutgers sought building and zoning permits for the project but they were refused and Rutgers was advised that it would need a variance. An application for a variance was filed and hearings held. On July 29, 1969 the board of adjustment made its findings of facts, ultimate findings and conclusions, and denied the requested variance.

This action was then instituted by Rutgers. As the action progressed, this court ordered a remand for the purpose of creating a record. The hoard again on September 9, 1970 denied the requested variance.

During the course of the presentation of testimony on behalf of Rutgers, the overwhelming need for the housing facilities in question was made. The New Brunswick campus includes Douglass College, the College of Agriculture, the Engineering College*, Rutgers College, the Graduate School, Livingston College and the Medical School. It was testified that the present enrollment of Rutgers at the New Brunswick campus was 9,905 students, full and part-time. By 1980 the enrollment in New Brunswick alone would be 19,432 students, excluding the evening division. The present number of full-time graduate students was 1,788, and approximately half of them were married. The projection was that in 1980 there would be approximately 5,900 graduate students, half of them married.

The University presently has approximately 200 new apartments and approximately 350 units dating from World War II to house married graduate students. To handle the need for married students in the period 1970 to 1980, it was testified that a minimum of 1,500 apartments would be required and that the need probably could go as high as 2,000 apartments.

It was testified that during the delay since the University originally applied to Piscataway, costs have increased approximately $2,000 per apartment.

The urgency of the housing needs was also demonstrated by testimony that the demand was sufficient to fill all the units immediately upon completion. Further, the demand for apartments beyond the University’s facilities would exist for at least the next ten years. It was stipulated that the project in issue is one for the promotion of higher education, namely, the furnishing of housing.

To understand the present problem as to whether Rutgers is subject to the zoning ordinance of Piscataway Township, a review of the history of Rutgers and the events leading up to the adoption of the Rutgers, The State University Law, L. 1956, c. 61, N. J. S. A. 18A:65-1 et seq., is necessary. Such a history, up to 1956, is fully incorporated in the opinion of Judge (now Justice) Schettino in Trustees of Rutgers College in N. J. v. Richman, 41 N. J. Super. 259 (Ch. Div. 1956), and need not be repeated here. Shortly after that opinion was rendered the Rutgers trustees voted to reorganize under the above act.

A major structural change in the relationship between Rutgers and the State occurred in 1956 (the 1956 Act), L. 1956, c. 61. Under that act Rutgers assumed what is substantially its present posture and was renamed as “Rutgers, The State University.” N. J. S. A. 18:22-15.2 (1956); N. J. S. A. 18A :65-2 (1968).

All property and educational facilities of Rutgers, including “all departments, colleges, schools, centers, branches, educational and other units and extensions,” continued “to be impressed with a public trust for higher education of the people of the State of Yew Jersey.” N. J. S. A. 18:22-15.27 (1956), now incorporated into N. J. S. A. 18A:65-2, 8 (1968). The same section again characterized the University as “the instrumentality of the State for the purpose of operating the State University.”

Under the 1956 act control of the University is divided between a board of trustees and a newly created board of governors. Six of the 11 members of the board of governors are to be appointed by the Governor with the advice and consent of the Senate, and the remaining five by the board of trustees from among its members. N. J. S. A. 18A:65-14 (1968).

Essentially, the board of trustees retains overall advisory capacity and responsibility for supervision and control of the properties, funds and other trust assets vested in Rutgers as of August 31, 1956. N. J. S. A. 18A:65-26 (1968). Thus, the board of trustees performs the classic functions of fiduciaries in preserving the trust property and making available to the board of governors the income for use by the University. The board of governors, by contrast, is vested with general supervisory power over the conduct of the University and over property vested in the University subsequent to August 31, 1956. N. J. S. A. 18A:65-25 (1968).

Is Rutgers as the Instrumentality of the State of New Jersey for the Purpose of Operating the State University Subject to Zoning Ordinances Enacted by Municipal Corporations F

Under the 1956 act Rutgers has the responsibility to further the purposes of higher education in the State. N. J. S. A. 18A:65—2 (1968) provides in part:

[T]he property and education facilities, rights and privileges of [Rutgers] are and shall continue to be impressed with a public trust for higher education of the people of the state of New Jersey; and [Rutgers] is the instrumentality of the state for the purpose of operating the state university.

Trustees of Rutgers College in N. J. v. Richman, Supra., referred to the trustees’ proposed acceptance of the 1956 legislative program as “their decision to become an arm of the State.” (At page 284). Thereafter, the court said:

The corporation is to continue as an instrumentality of the State for tlie purpose of maintaining the State University, with its property and educational facilities impressed with a public trust for higher education for the people of the State. Similar provisions designating Rutgers as an instrumentality of the state for providing public higher education, and impressing the property of the Trustees of Rutgers College in New Jersey with a public trust for higher education, were set out in L. 1945 c. 49, but without placing control in a Board of Governors, a majority of whose members are public appointees. [at 296, emphasis added]

Justice Schettino noted that Rutgers had been treated as a public instrumentality under the State Employees Retirement System and that the question whether University employees qualified for privileges under the Federal Social Security Act, that act providing for the extension of coverage to “services performed by individuals as employees of * * * any political subdivision,” was resolved in favor of the employees. The definition of “political subdivision” within the federal statute includes “instrumentality of the State.” Id. at 297.

Justice Schettino further referred to Rutgers as the “alter ego” of the State, to which donations of land and appropriations of money might be made without offending constitutional prohibitions. Id. at 298. He specifically stated:

Thus, even were it held (and I do not so find) that “Rutgers, The State University” is a private institution, that institution, acting through its Board of Governors, would be under a substantial and definite obligation to the State for the fulfillment of public purpose, [at 300]

He further said:

Thus we find here created a hybrid institution—at one and the same time private and public, with the State being granted a major voice in management, and the designation “State University”; and the institution being granted private autonomy and control of physical properties and assets, [at 289-290]

It is my couelusion from the statute and Justice Schettino’s conclusions that Rutgers is am instrumentality of the State, and as such instrumentality is immune from local zoning ordinances. Bloomfield v. N. J. Highway Authority, 18 N. J. 237 (1955).

In Bloomfield the Supreme Court concluded that an instrumentality of the State, such as the Highway Authority, should be immune from local zoning ordinances if the following criteria are met:

1. The project is a State project for a public use;
2. The public purpose is an essential governmental function;
S. The public need for such a project is urgent;
4. The public goal could be completely thwarted by the intervention of local communities and
5. The history or statute is devoid of any indication of legislative intent or purpose that such an important State wide facility should be so restricted.

Applying these criteria to the instant case, one finds that Rutgers, by statutory mandate, is an instrumentality of the State entrusted with a vital State function — operating the State University. The education of youth is a fundamental public policy and is an essential governmental function. The promotion of public higher education is the logical extension of this basic policy. The Legislature declared in N. J. S. A. 18A:6o—9 (1968) that the establishment of the University as a State University was necessary “for the welfare of the state and the people of New Jersey to provide for the development of public higher education and thereby to increase the efficiency of the public school system of the state * * *”

The public need for the development of educational institutions is urgent. If New Jersey educational facilities fail to increase their collective educational capacity significantly, students will face severe difficulty matriculating within the State as will those seeking college admission outside the State.

It is obvious that the legislative goal would be thwarted were not immunity intended in the legislative scheme. Rutgers maintains three major campuses, located in seven different municipalities. The New Brunswick campus itself is in five municipalities. The absence of immunity would result in local municipalities controlling virtually every decision concerning physical development of the University. That result would be contrary to the expressed intent to establish Rutgers as the State’s instrumentality to operate the State University.

In Aviation Services v. Board of Adjustment, Hanover Tp., 20 N. J. 275 (1956), the court stated:

If the purposes sought to be achieved are to be thwarted by zoning plans which arbitrarily exclude airport uses from an entire municipal domain the progress envisioned by the Legislature and stimulated by this statute may go unrecognized. Rules of statutory construction command a contrary result [at 283, emphasis added]

That principle was restated in Newark v. N. J. Turnpike Authority, 7 N. J. 377 (1951) :

* * * [T]he idea that any and every municipality along the route of the proposed turnpike could effectively veto either its location or the manner of its construction by a withholding of consent is in direct conflict with the very concept of a turnpike designed to serve the best interests of the entire State and not merely those of particular localities, [at 387]

So, too, in the instant case municipalities represent a singular, local interest, whereas the University is responsible for the general interest of the people of the State. The University has been granted autonomy and authority to carry out its stated goals, and the interests of a local municipality should not be allowed to interfere.

Nowhere in the statute has the Legislature, expressly or by implication, indicated any intention to restrict Rutgers by subjecting it to municipal control. As the Supreme Court stated in Aviation Services, supra:

* * * [W]here the immunity from local zoning regulation is claimed by any agency or authority which occupies a superior position in the governmental hierarchy, the presumption is that such immunity was intended in the absence of express statutory language to the contrary. [20 N. J. at 282]

The presumption of immunity arises because there is no express language to the contrary. In the absence of such express contrary statement, “no public right can be taken away by mere inference or legal construction.” N. J. Interstate Bridge & Tunnel Comm’n v. Jersey City, 93 N. J. Eq. 550, 553 (Ch. 1922).

Supporting the presumption of immunity are the provisions of the 1956 act. That act indicates that Rutgers, like other instrumentalities of the State, was created so that local partisan considerations wonld not hamper its efforts to achieve its stated goals. A clear and unique public policy exists with respect to the University. As stated in N. J. S. A. 18A :65-37,

I. It is hereby declared to be the public policy of the state of New Jersey that;
a. the corporation and the university shall be and continue to be given a high degree of self-government and that the government and conduct of the corporation and the university shall he free of partisanship; and
b. resources be and continue to be provided and funds be and continued to be appropriated by the state adeqiiate for the conduct of a state university with high educational standards and to meet the cost of increasing enrollment and the need for proper facilities. [Emphasis added]

Such a statement of policy must be liberally construed. A high degree of self-government is guaranteed and the independence of the University firmly established. The language evinces the intention to isolate the functioning of the University from partisan politics. By implication, such a policy requires the conclusion that Rutgers is immune from local zoning ordinances, and its choice of site rests within its discretion and will not be upset except upon "an affirmative showing of fraud, bad faith or manifest abuse.” Bloomfield v. N. J. Highway Authority, supra, 18 N. J. at 240.

If the intent had been to subject Rutgers to local zoning ordinances, the Legislature would have done so expressly. As stated in Garden State Parkway Employees Union Local 196, AFTE, AFL-CIO v. N. J. Highway Auth., 105 N. J. Super. 168, 171 (App. Div. 1969), "It is to be noted that whenever the Legislature intended to include authorities within the ambit of certain legislation, it expressly so provided.”

For the foregoing reasons, plaintiff’s motion for summary judgment based on its claim of immunity from municipal zoning ordinances as an instrumentality of the State of New Jersey is granted.


author: Yanoff, J. D. C.

text:
    243 SO. HARRISON STREET CORP. A NEW JERSEY CORPORATION, PLAINTIFF, v. LOUIS OGUST AND LILLIAN OGUST, DEFENDANTS.
    District Court Essex County
    Decided January 12, 1971.

      Mr. David M. Beclcerman for plaintiff (Messrs. Beclcerman, Franzblau & Gohen).

      Mr. Louis Ogusi, pro se for defendants.
   Yanoff, J. D. C.

The simple question in this case is whether a lease termination provision which provides for notice by registered mail may be exercised by certified mail. The loase provided:

That this letting and hiring shall be extended and renewed by and against the parties hereto for the further term of one year from the expiration of the term granted hereby, at the same rental without any deduction or concession, and upon all the above terms, conditions and covenants, unless either party on or before the first day of August next preceding the termination of any term granted hereby shall give notice to the other of an intention to surrender or have possession of the premises, as the case may be. Notice by the Landlord to the tenant must be given by sending the same by TJ. S. Registered Mail. Notice by the Tenant to the Landlord must be given by sending the same by U. S. Registered Mail. This clause shall be and continue operative likewise with respect to any renewals or extensions hereof.

Landlord gave timely notice by certified mail which tenant received.

Under date of July 33, 1970 the landlord sent the tenants notice of the termination of the lease by certified mail, which informed them that another lease referred to both as a “new lease” and a “renewal” could be entered into only on the basis of increased rental, and called for a response as to whether they wished to either renew or enter upon a new lease at a higher rental. On the same day the tenants wrote a letter, registered mail, to the landlord advising of his intention “to continue possession of the premises for an additional year, beginning November 1, 1970, upon the terms and conditions as therein [the lease] provided.” In response to another letter from the landlord, the tenant wrote:

Tour Certified Mail form letter dated August 1, 1969 was received on August 5, 1969.
I believe you are in error when you say therein that my lease terminates on October 31, 1969.
I refer to Item “Twentieth” of same.
Will you please cheek and advise.

Under date of September 35, 1970 the landlord sent a new lease, at the increased rental, to the tenants, stating:

If these signed leases are not received in this office by not later than Thursday, October 15, 1970, we will assume that you are vacating your apartment on or before the 31st of October 1970, and we will endeavor to rent your apartment to a new tenant.

The landlord moves to. evict on the ground that the lease has expired.

The tenants argue that the lease must be construed most strongly against the party preparing it, citing Kislak, Inc. v. Muller, 100 N. J. Eq. 110 (Ch. 1926), and other cases. This is unquestionably the law. However, it applies only where there is room for construction by reason of ambiguity, doubt as to meaning, or failure to express intention. Fletcher v. Interstate Chemical Co., 94 N. J. L. 332 (Sup. Ct., 1920), aff’d 95 N. J. L. 543 (E. & A. 1921); Farber v. Shell Oil Co., 47 N. J. Super. 48 (App. Div. 1957); Summer v. Fabregas, 52 N. J. Super. 399 (App. Div. 1958). They also argue that the sentence, “This clause shall be and continue operative likewise with respect to any renewal or extension thereof,” means that the tenant had the right to renewal and that his letter of July 23, 1970 constituted such a renewal. In the court’s judgment such a construction is not warranted by the terms of the lease. The language is clear that either party has the right to prevent renewal by mailing notice, and that only in the event of inaction by both parties was the lease renewed automatically. The language upon which the tenants, rely means only that the requirement for registered mail applies also in ease of renewals.

The tenants argue, further, that the landlord’s notice by certified mail did not satisfy the quoted lease provision. The issue as to whether notice by certified mail satisfied the lease provision, therefore, cannot be avoided.

In construing N. J. S. A. 46:32-25, a provision of the Uniform Conditional Sales Act (now repealed), which provided for notice of sale of property subject to a conditional sales contract by registered mail, the Supreme Court held in Pacific Discount Co. v. Jackson, 37 N. J. 169 (1962), that by virtue of N. J. S. A. 1 :1-2, which provides that “the words ‘registered mail’ include ‘certified mail,’ ” mailing by certified mail satisfied section 25 of that. It held, further, that for the purpose of this section, proof of mailing, without actual receipt, was sufficient. Were a question of statutory construction involved here, this would be conclusive. However, we are concerned with contract principles and therefore must have recourse to decisions applicable thereto.

In limine, it must be noted that under current practice strict application of the contract terms gives way to general principles of equity and fairness. Henningsen v. Bloomfield Motors, Inc., 32 N. J. 358 (1960); Unico v. Owen, 50 N. J. 101 (1967). The analogy which comes most readily to mind is contract law of offer and acceptance. There, an acceptance by an authorized means binds the contract as soon as it is put out of the offeree’s control, usually by mailing. Restatement, Contracts, § 64 (1932); Potts v. Whitehead, 20 N. J. Eq. 55 (Ch. 1869), aff’d 23 N. J. Eq. 512 (E. & A. 1872); Houghwout v. Boisaubin, 18 N. J. Eq. 315 (Ch., 1867); Northampton Mutual Live Stock Ins. Co. v. Tuttle, 40 N. J. L. 476 (Sup. Ct. 1878). But an acceptance by an unauthorized means is effective if received in time. Restatement, Contracts, § 68; 17 C. J. S., Contracts, § 42, at 679.

Gleanings from New Jersey cases are meager, but they suggest that the essence of the matter is whether the notice required by the lease was received in time. In Marjer v. Layfmen, 140 N. J. Eq. 68 (Ch. 1947), the tenant sent a notice of renewal by registered mail in compliance with the lease, but did not sign it. Nevertheless, the court protected his interest in the renewal by preliminary injunction. Citing Marjer, the Appellate Division in Vineland Shopping Center, Inc. v. DeMarco, 65 N. J. Super. 223 (1961), rev’d on other grounds 35 N. J. 459 (1961), said:

A requirement of “written notice” is generally held to be satisfied by a written, but unsigned notice, provided the circumstances are such that the receiver can have no substantial doubt as to the source and purpose of the writing. [65 N. J. Super. at 227]

In other jurisdictions cases interpreting lease provisions similar to that involved here, requiring notice by registered mail of an intent not to renew, have held that notice by other means which reached the other party was sufficient. East Eighty-Second St. Corp. v. Rogers, 192 App. Div. 633, 183 N. Y. S. 297 (App. Div. 1920); Woods v. Cities Service Oil Co., 142 So. 2d 168 (La. Ct. App. 1962); 51C C. J. S. Landlord and Tenant, § 62 (2) (d) at 198.

In East Eighty-Second St. Corp. v. Rogers, the court said:

It thus follows that not only was plaintiff’s letter of February 6th to defendant tantamount to a formal notice of its intention not to renew, but that defendant himself elected not to renew the lease, unless it should be held that a strict compliance with the provision of the lease that such respective notices are to be given by “registered mail” is essential. The obvious purpose of providing for notice by registered mail was to insure the delivery of the notice, and to settle any dispute that might arise between the parties as to whether or not the notice was duly received. [183 N. Y. S. at 300]

The fact is that the tenants knew the landlord^ attitude within the time limited by the lease and had ample opportunity to either accept or reject the offer made to them. Instead, they stood upon what they deemed a sound legal position. In this they erred. There will be a judgment for possession.

In view of the lapse of time since the matter was heard, a motion should be made for issuance of the warrant.


author: Halpern, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. ARTHUR WRIGHT, JR., DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued January 12, 1971
    Decided January 21, 1971.

      Before Judges Kilkenny, Halpern and Lane.

      Mr. Peter N. Perretti, Jr., Assigned Attorney, argued the cause for appellant.

      Mr. B. Benjamin Cohen, Assistant Prosecutor, argued the cause for respondent (Mr. Joseph P. Lordi, Essex County Prosecutor, attorney; Mr. David 8. Baime, Assistant Prosecutor, of counsel).
   The opinion of the court was delivered by

Halpern, J. A. D.

Defendant was convicted by a jury of the unlawful possession of narcotics (N. J. S. A. 24:18-4), and appeals from the judgment of conviction. The issues will be considered in the order presented in defendant’s brief.

I

Defendant contends the court erred in not suppressing the evidence seized because (a) the warrant for the search was issued without a sufficient showing of probable cause, and (b) the warrant was improperly executed.

Defendant had been jointly indicted with Elsie Sampson. At the joint hearing on their motions to suppress, counsel for Sampson advised the court that no attack was being made on the sufficiency of the proofs for the issuance of the warrant. We find from the record that defendant and his attorney (not assigned counsel on this appeal) acquiesced therein. Defendant’s attorney made no objection to the admission by Sampson’s attorney; at the hearing he offered no argument or testimony to attack the sufficiency of the proofs in support of the warrant, and in summation at the suppression hearing he stated that “we have to assume since the affidavit isn’t being attacked, that there was a valid search warrant, and there were grounds for a search warrant, at least to make a search, * * The sufficiency of the proofs to support the issuance of the warrant having been voluntarily admitted, the defendant has waived his right to now attack it on appeal. State v. Di Rienzo, 53 N. J. 360, 384 (1969) ; Oradell Village v. Wayne Tp., 101 N. J. Super. 403 (App. Div. 1968), ail’d 53 N. J. 496 (1969). As we noted in Abel v. Elizabeth Bd. of Works, 63 N. J. Super. 500, 510 (App. Div. 1960), “the object of an appeal is to correct errors properly noted below — not to retry a case.”

We turn to the issue concerning the execution of the warrant. The warrant authorized a search for narcotics “concealed in the premises of Arthur Wright, Elsie Sampson known and designated as 12 Chestnut Street, Apt. No. 7, in the City of Newark, Essex County, New Jersey.” The trial judge found from the proofs at the suppression hearing that the place to be searched was properly designated because defendant and Sampson were narcotic offenders who had registered as such in compliance with N. J. S. A. 2A:169A-1, and had designated Apt. No. 7 at 12 Chestnut Street as their present address. The fact that the police, in executing the warrant, saw defendant in Apt. No. 8 as they were approaching Apt. No. 7 and arrested and searched him in Apt. No. 8 does not invalidate the search.

The Fourth Amendment to the United States Constitution and Art. 1, par. 7 of the New Jersey Constitution do not forbid all searches and seizures; they forbid only unreasonable searches and seizures. Elkins v. United States, 364 U. S. 206, 80 S. Ct. 1437, 4 L. Ed. 2d 1669 (1960). When a search is made pursuant to the authority of a warrant, it is preferentially treated and is presumed valid and the burden of establishing its invalidity is upon the defendant. Aguilar v. Texas, 378 U. S. 108, 84 S. Ct. 1509, 12 L. Ed. 2d 723 (1964); State v. Mark, 46 N. J. 262, 273 (1966). The warrant will be held to sufficiently describe the place to be searched if the officer with the warrant can with reasonable effort ascertain and identify it. State v. Daniels, 46 N. J. 428, 435-437 (1966); State v. Medero, 95 N. J. Super. 209 (App. Div. 1967); State v. Ferrara, 98 N. J. Super. 534 (App. Div. 1968); State v. Sheppard, 46 N. J. 526 (1966). If the sufficiency of a warrant is marginal, the search will be held valid. United States v. Ventresca, 380 U. S. 102, 109, 85 S. Ct. 741, 13 L. Ed. 2d 684 (1965); State v. Kasabucki, 52 N. J. 110, 116 (1968). Applying these standards to the facts appearing in the record before us, we agree with the trial judge that the misdescription of the apartment to be searched resulted from the defendant’s own wrongful act. The unintentional error by the police in designating the apartment occupied by defendant and Sampson as Apt. No. 7 as the place to be searched was rationally explained. State v. Daniels, supra, 46 N. J. at 438. Neither the Federal and State Constitutions nor fundamental justice require this otherwise valid search and seizure to be set aside.

II

Defendant contends that certain volunteered answers given by two police officers by innuendo informed the jury of his prior criminal difficulties. At the outset we point out that when the alleged offensive answers were given the court immediately struck them and charged the jury to disregard them. No motion was made for a mistrial. We have examined the record and find no prejudicial error in this regard. State v. Layton, 103 N. J. Super. 470 (App. Div. 1968), certif. den. 53 N. J. 351 (1969).

III

Defendant contends he was prejudiced by an improper comment made by the assistant prosecutor. At the conclusion of the State’s proofs the following exchange took place:

SIR. FRANCIS: Your Honor, I have no further witnesses. The additional two men who were in this particular apartment would only be repetitive of the testimony developed. However, in resting I will make these witnesses available to the defendant.
MR. GROSSMAN: Your Honor, I don’t think it is necessary for the prosecutor to make a speech to the Court. If he wants to call them as his witnesses, let him call them as his witnesses.
THE COURT: Well, ho indicated to the Court that he has no need for them as their testimony would only be cumulative.
MR. GROSSMAN: It’s for the jury to conclude, your Honor, not on his representation that they would testify the same way.

Considering this exchange in context of the discussion, no prejudicial error occurred warranting a new trial. State v. Hipplewith, 33 N. J. 300, 320 (1960).

IV

Einally, defendant contends it was plain error for the court to recall the jury on his own initiative after they had been deliberating for about five hours and give them a so-called “Allen charge.” We have carefully reviewed this supplemental charge and find it fully comported with the mandate in State v. Williams, 39 N. J. 471, 484 (1963), cert. den. 374 U. S. 855, 83 S. Ct. 1924, 10 L. Ed. 2d 1075 (1963). There was no error, let alone plain error.

Considering the record as a whole, we are satisfied defendant received a fair trial.

Affirmed.


text:
    ROBERT STUPIN, PLAINTIFF-RESPONDENT, v. PRIMITIVO SANCHEZ, DEFENDANT-APPELLANT. UNSATISFIED CLAIM AND JUDGMENT FUND BOARD, APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued January 12, 1971
    Decided January 21, 1971.

      Before Judges Kilkenny, Halpeen and Lane.

      Mr. Martin L. 8isselman argued the cause for appellants (Messrs. James & Addas, attorneys).

      Mr. Stephen Mongiello argued the cause for respondent.
   The opinion of the court was delivered by

Halpern, J. A. D.

The narrow legal issue presented is whether plaintiff, a New Jersey uninsured motorist, may compel payment by the Unsatisfied Claim and Judgment Fund Board (Fund) of a judgment obtained against defendant, also a New Jersey uninsured motorist, who ran over plaintiff while plaintiff was changing a fiat tire on his ear.

This appeal is from the order requiring the Fund to pay the judgment. We reverse.

To enable an uninsured motorist to collect a judgment from the Fund he must show, among other things, that:

He was not at the time of the accident, operating or riding in an uninsured motor vehicle owned by him or his spouse, parent or child, and was not operating a motor vehicle in violation of an order of suspension or revocation, (N. J. S. A. 39:6-70(d))

The trial judge determined “that the plaintiff was not the operator of his car when injured” because it was neither operable nor was he in it when injured. This was too narrow a construction of the statute.

Plaintiff was on his way home from work when his left front tire went flat on the Pulaski Skyway. Eather than abandon the car, he proceeded to fix the flat and was injured while doing so. Fixing the flat tire was part of operating the car to enable plaintiff to get home. It is true the car was at a temporary standstill but nevertheless he was still operating an uninsured motor vehicle owned by him within the proscription of the statute. See Robson v. Rodriquez, 26 N. J. 517, 524-525 (1958); Gilbert v. Unsatisfied Claim and Judgment Fund Board, 85 N. J. Super. 143 (App. Div. 1964), certif. den. 44 N. J. 403 (1965); Lascari v. Iannaci, 56 N. J. 317 (1970).

Reversed and remanded with directions to enter judgment for the Pund.


author: Feller, J. S. C.

text:
    THE BOROUGH OF ROSELLE PARK, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, PLAINTIFF, v. THE TOWNSHIP OF UNION, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY; THE BOARD OF ADJUSTMENT OF THE TOWNSHIP OF UNION AND UNION SENIOR CITIZENS HOUSING CORPORATION AND LOUIS J. GIACONA, BUILDING INSPECTOR OF THE TOWNSHIP OF UNION, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided December 11, 1970.

      Mr. Alfonso L. Pisano for plaintiff (Messrs. Pisano & Triar si, attorneys).

      Mr. Abraham H. Sles for defendant Union Senior Citizens Housing Corporation.

      Air. Julius B. Pollatscheh for defendant Township of Union and Louis J. G-iacona, Building Inspector of the Township of Union (Messrs. Kein, Scotch, Pollatscheh, Iacopino and Kein, attorneys).

      Mr. Arthur J. Sabatino for defendant Board of Adjustment of the Township of Union.
   Feller, J. S. C.

This is an action in lieu of prerogative writs instituted by the Borough of Roselle Park challenging the granting of a variance by the Township Committee of the Township of Union.

Plaintiff contends that it is a municipality adjoining the Township of Union and that defendant Union Senior Citizens Housing Corporation made application to the Union Township Zoning Board of Adjustment for a recommendation of a variance to construct a three-story senior citizens’ housing project. The. application involved property known as Index 15, Block 6, Lot 53, commonly known as Ho. 35 Sumner Avenue, in a Residence A zone in the Township of Union. Plaintiff further contends that the property is within 200 feet of the boundary line between Roselle Park and Union Township, as well as property located in Roselle Park.

On December 8, 1909 a hearing took place before the Township board of adjustment. Witnesses were heard in behalf of the applicant, and a number of objectors, including representatives of plaintiff, appeared at the hearing and noted objections to the application. Proceedings were adjourned to December 22, at which, time the board of adjustment adopted a resolution recommending grant of a variance. The township committee granted the variance on February 3, 1970.

This action was filed challenging the validity of the original recommendation of the board of adjustment as not being supported by the evidence introduced at the hearing and challenging the granting of the variance by the township committee, and noting that the grant of said variance failed to meet the requirements of the applicable statutes. Plaintiff further contends that in recommending the granting of the variance the board of adjustment ignored the comments made by the Union County Planning Board set out in a letter dated December 8, 1969, which letter was delivered to the board of adjustment on said date. Plaintiff contends that the granting of the variance will increase traffic congestion and cause flooding conditions in Roselle Park and also add to the high population density proposed for the area.

Defendants contend that the Borough of Roselle Park has no legal standing to bring this action; that only property owners have such standing. Defendants further contend that the application of the Union Senior Residents Housing Corporation for a variance was properly granted for the erection of a three-story mid-rise apartment building of fireproof masonry construction; that the objections made by plaintiff before the Township board of adjustment were without valid factual or legal basis, and that plaintiff failed to submit any legal evidence to support its contentions.

Defendants further contend that the board of adjustment considered all of the testimony and other evidence before it in making its findings, which findings were based upon ampie evidence appearing at the hearing and fully supported the findings and determination of the Board of adjustment.

Defendants contend that the granting of the variance by the township was proper, and the resolution of the board of adjustment and township committee based upon their respective findings and approval concluded that there were special reasons for the granting of the requested variance, and that the granting of such variance would not be detrimental to the public good and would not substantially impair the intent and purpose of the zone plan and zoning ordinance of the township.

It is further contended by defendants that a letter from the Union County Planning Board has no binding authority at a hearing before the board of adjustment.

The resolution of the Township Committee, in granting the variance, concurred in the resolution of the Board of Adjustment. [The resolution not reproduced sets out at length the factual findings on which the board found that there were sufficient special reasons for granting the variance and that there would not be substantial impairment to the public good or to the intent and purpose of the zone plan and zoning ordinance of the township.]

The transcript of the proceedings of the meeting of the township committee on February 3, 1970 indicates that it examined the record and exhibits and plans and studied the testimony of the experts and on the basis of this the township committee granted the variance.

Roselle Park then filed this action in lieu of prerogative writs challenging the action of the board of adjustment in recommending the granting of the variance and the action of the township committee in granting the variance, and demanding that their actions be reversed and set aside. Plaintiff also demands that the Township building inspector be enjoined from issuing a building permit for the project.

I

Defendants contend that Roselle Park lacks standing to challenge the granting of a zoning variance by the Township of Union in the instant case. In order to determine whether a neighboring municipality has standing to contest the validity of the act of another municipal body in granting a zoning variance, it is necessary to examine this question from a historical perspective.

Originally, persons who neither resided in nor owned property in the municipality in which property to which a variance had been granted was located had no status as an aggrieved person, no matter to what extent the value of their property located just over the municipal boundary line might be affected. Eor was the adjoining municipality considered an "aggrieved person.”

2 Rathkopf, Law of Zoning and Planning, C. 63, § 4, at 63-28, states:

While this appears to be too parochial a view, particularly in the light of the emphasis placed upon regional planning by the New York General Municipal Law, Article 12-B and the requirements of notice of certain proposed municipal zoning action to neighboring municipalities, New York Town Law, Sec. 264; New York Village Law, Sec. 178, a contrary view would conflict with the obligation placed upon a municipality to zone in accordance with a comprehensive plan of its own, as well as the concept of municipal sovereignty over its own territory.

This was originally also the state of the law in New Jersey. See Cresskill v. Dumont, 15 N. J. 238 (1954). However, some recent cases seem to indicate a trend away from this rule. See 8 William & Mary L. Rev. (Winter 1967), at 304. See also Wash. U. L. Rev., (Feb. 1965), § 1 at 121.

What may be the most appropriate use of any particular property depends not only on all conditions, physical, economic and social, prevailing within the municipality, and its needs, present and reasonably prospective, but also on the nature of the entire region in which the municipality is located and the use to which the land in that region has been or may most advantageously be put. The effective development of a region should not and cannot be made to depend upon the adventitious location of municipal boundaries, often prescribed decades or even centuries ago and based in many instances on considerations of geography, commerce or politics that are no longer significant

with respect to zoning and the use of property. Changes in methods of transportation, as well as in living conditions, have only served to accentuate the unreality in dealing with zoning problems and the use of property on the basis of the territorial limits of a municipality. Improved highways, new transportation and communication facilities have made possible the use of property not contemplated in the earlier stages of zoning. The resulting advantages advance the general welfare of the entire region. Duffcon Concrete Products, Inc. v. Cresskill, 3 N. J. 509 (1949).

In Cresskill v. Dumont, 28 N. J. Super. 26, 44 (Law Div. 1953), the court said that the statute provides that a municipality may sue and be sued. N. J. S. A. 40:43-l. The statute authorizes municipalities to adopt zoning ordinances for the public good. The municipality is charged with the duty of enforcing those ordinances in the public interest. Garrou v. Teaneck Tryon Co., 11 N. J. 294 (1953). The court further stated that a municipality has the power to bring suit against anyone for the purpose of protecting the public interest which the municipality itself is endeavoring to promote and which it is in duty bound to promote, and cited McQuillin, Municipal Corporations (2d ed.), § 2650, which states that a municipality may sue and be sued in the same manner as natural persons.

On appeal the New Jersey Supreme Court (15 N. J. 238 (1954)), affirmed the judgment of the Law Division in setting aside the amendment to the zoning ordinance. However, the court stated

The appellant first argues that the plaintiffs were not proper parties to the action and that therefore its motion to dismiss the complaint should have been granted. In this regard the appellant directs its attack primarily toward the three municipal plaintiffs and the individual plaintiffs who reside in the other boroughs. It is unnecessary, however, for us to decide this issue, because the Wendlands own property on Block 197, the very area affected by the amendatory ordinance. Clearly they have sufficient interest to bring this action. Speakman v. Mayor and Council of Borough of Worth Plainfield, 8 N. J. 250, 258 (1951), Menges v. Township of Bernards, 4 W. J. 556, 559 (1950). The fact that they did not testify is not significant, since they were parties plaintiff and all evidence produced on the plaintiffs’ case inured to their benefit. It is therefore immaterial whether the municipal and remaining individual plaintiffs have adequate status to challenge the ordinance and the question is therefore reserved, [at 245]

Thus the court declined to pass upon the question, although affirming the trial court’s decision that the amendment should be set aside. Nevertheless, there seemed to be clear indications in the opinion that the responsibility of a municipality for zoning does not end with the municipal boundaries.

The court in Cresskill, supra, 15 N. J. at page 247, noted that the appellant in that case contended that the responsibility of a municipality for zoning halts at the municipal boundary lines without regard to the effect of its zoning ordinances on adjoining and nearby lands outside the municipality. The court stated that such a view might prevail where there are large undeveloped areas at the borders of two contiguous towns, but it cannot be tolerated where, as here, the area is built up and one cannot tell when one is passing from one borough to another. Under such circumstances municipal boundary lines are not Chinese walls separating one municipality from the other.

The court in Cresslcill further stated:

* * * At the very least Dumont owes a duty to hear any residents and taxpayers of adjoining municipalities who may be adversely affected by proposed zoning changes and to give as much consideration to their rights as they would to those of residents and taxpayers of Dumont. To do less would be to make a fetish out of invisible municipal boundary lines and a mockery of the principles of zoning. There is no merit to the defendant’s contention, [at 247]

The court also stated (at 249) that although the exercise of zouiug powers is a constitutional responsibility of the municipalities (N. J. Const. (1947), Art. IV, § VI, par. 2), it is to be noted that the Legislature has also provided for both county planning boards. (N. J. S. A. 40 :27-l) and regional planning boards (N. J. S. A. 40:27-9), thus indicating its intention to extend planning beyond municipal lines. This intention was later manifested by amendments to N. J. S. A. 40:55-53, which provide, in effect, that where a hearing is required in respect to granting a variance and the property involved is within 200 feet of an adjoining municipality, the clerk of said municipality shall be served with written notice of said hearing and the county planning board shall also be served with notice if, in addition, the property involved adjoins a county road.

In 9 Rutgers L. Rev. 702, the article discussed in detail the rule set out in Duffcon Concrete Products, Inc. v. Cresskill, supra. It states:

The Borough of Creskill took the language of the Chief Justice seriously, so seriously in fact that it later began suit against its neighbor, the Borough of Dumont, to set aside an amendment to the Dumont zoning ordinance on the ground that it failed to comply with the proper regional considerations. In its opinion the Court, again with the Chief Justice writing, substantially reinforced its policy concerning regional concepts in zoning, held that the Borough of Dumont had at least a duty to listen to the grievances of its neighbor when contemplating the enactment of zoning legislation affecting the latter’s interests and held Dumont’s ordinance invalid. The Daw Division in the same case had specifically held, extending the logic of the Buffoon ease that a municipality had standing to challenge a neighbor’s zoning ordinance. The Supreme Court was able to avoid passing on this delicate issue, since one of the plaintiffs was without question a proper party, while at the same time leaving little doubt that in a case of necessity the issue would be resolved in favor of standing [Emphasis added]

It should be noted that the article ends with the conclusion that there is little doubt that in case of necessity the court would resolve this issue in favor of standing.

There seems to be legal justification for this conclusion.

In Jersey City v. Hague, 18 N. J. 584 (1955), the court said:

There is an implied power in public officers to take all legal measures, in their official character, which may be requisite to enable them to execute a trust or discharge the duty imposed on them by law, where there is no statute prescribing the means by which such trust shall be executed or duty discharged, [citing Cornell v. Town of Guilford, 1 Denio [N. Y.] 510, 515; see Supervisors [Supervisor of town] of Galway v. Stimson, 4 Hill [N. Y.] 136; Jackson v. Hartwell, 8 Johns [N. Y.] 422]. [at 598]

N. J. Const. (1947), Art. IV, § VII, par. 11, provides:

The provisions of this Constitution and of any law concerning municipal corporations formed for local government, or concerning counties, shall be liberally construed in their favor. The power of counties and such municipal corporations shall include not only those granted in express terms but also those of necessary or fair implication, or incident to the powers expressly conferred, or essential thereto, and not inconsistent with or prohibited by this Constitution or by law.

N. J. S. A. 40:43-1 provides:

The inhabitants of every municipality shall be a body corporate in fact and in law, and by its corporate name * * * may sue and be sued * * *.

The court in Jersey City v. Hague, 'supra, recited the above constitutional and statutory provisions and stated (at 598, 599) that to hold that specific express authority is required in every instance of suit by a municipality would be to render meaningless the general statutory power to sue which, according to constitutional mandate, must be liberally construed. See Edwards v. Mayor, etc., Moonachie, 3 N. J. 17 (1949). The fact that in so few cases the issue of power to bring such a suit has been raised, and rarely successfully, is, we think, indicative that the generally accepted belief is that a municipal corporation has the inherent power to sue as an incident of its creation.

This is consistent with the opinion of the court in Leonid v. Fort Lee, 56 N. J. Super. 135, 138, 139 (App. Div. 1955), where the Borough of Leonia brought a proceeding in lieu of prerogative writs to set aside an ordinance adopted by the Borough of Eort Lee. The court stated that the right of the Borough of Leonia to maintain that action or those that followed is not questioned.

These cases involved attacks on zoning ordinances, but the same rules would apply in attacks on variances granted from the terms of an ordinance.

This court takes judicial notice that there are no large undeveloped areas at the border of Roselle Park and Union, but that the area is built up and it is difficult to tell when one is passing from Roselle Park to Union, or vice versa. See In re Simpson, 136 N. J. Eg. 597, 611 (Prerog. Ct. 1945). As the court stated in Gresshill, supra, * * * municipal boundary lines are not Chinese walls separating one municipality from the other.

Therefore, it is the opinion of this court that plaintiff borough has legal standing to institute this action.

II

[The court held that there were special reasons for granting the variance and that the variance would not result in substantial detriment to the public good or the intent and purpose of the zone plan and zoning ordinance, under N. J. S. A. 40 :55-39(d).]

Ill

[The court held, contrary to plaintiff’s claims, that the variance would not increase traffic congestion, cause flooding or add to the population density of the area.]

CONCLUSION

It is the opinion of this court that

(1) Plaintiff borough has legal standing to institute this action.

(2) (a) The variance can be granted without substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and zoning ordinance.

(2) (b) Special reasons for granting the variance exist, for it is designed to promote the general welfare of the community in that it inherently serves the public good, regardless of whether the use is peculiarly fitted to the particular location for which the variance is sought.

(3) The variance will not have any adverse or detrimental effect upon the Borough of Roselle Park or any property in Roselle Park.

Accordingly, judgment is hereby entered for defendants and the building inspector is directed to issue the necessary building permit.