author: Per Curiam. Seidman, J. A. D.

text:
    HENRY ANDERSON, PLAINTIFF-APPELLANT, v. DR. HAROLD SOMBERG, ST. JAMES HOSPITAL, REINHOLD-SCHUMANN, INC., A CORPORATION, LAWTON INSTRUMENT COMPANY, A CORPORATION, AND ALCON LABORATORIES, A CORPORATION, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued May 21, 1973
    Decided July 10, 1973.

      Before Judges Carton, Mintz and Seidman.

      Mr. Ira J. Zarin argued the cause for appellant (Messrs. Zarin and Mar an, attorneys).

      Mr. James T. Clare argued the cause for respondent Harold Somberg (Messrs. Shanley & Fisher, attorneys).

      Mr. Edward E. Kuebler argued the cause for respondent St. James Hospital.

      Mr. John I. Lisowski argued the cause for respondent Reinhold-Schumann, Inc. (Messrs. Morgan, Melhuish, Monagahan, McCoid & Spielvogel, attorneys; Mr. James L. Melhuish, of counsel).

      Mr. Donald L. Berlin argued the cause for respondent Lawton Instrument Company (Messrs. Lieb, Teich & Berlin, attorneys).
   Per Curiam.

Plaintiff appeals from a judgment entered in favor of all defendants following a jury trial. His motion for a new trial was denied.

On November 14, 1967 plaintiff was operated on by defendant Dr. Somberg at St. James Hospital (hospital) for the removal of an intravertebral disc at the L4-5 level. During the course of the surgery the cup of one of the jaws of the metal pituitary rongeurs (forceps) being used to remove disc material broke off and remained within the surgical cavity. Dr. Somberg testified that he immediately went into the cavity with a straight pituitary and felt metal hitting metal. He tried grasping but he could not come up with the cup. After about 30 minutes of attempting to recover the cup, and no longer being able to feel metal, Dr. Somberg decided that the best course to follow at this point would be to sew up plaintiff, which he did.

The instrument in question was an angulated pituitary rongeur manufactured by defendant Lawton Instrument Company (Lawton) who sold it to defendant BeinholdSchumann, Inc. (Reinhold). Beinhold, in turn, sold the instrument to the hospital on or about August 25, 1963. It appears that the pituitary rongeur was used only in laminectomies, perhaps five times a year. The instrument was kept in a special drawer because it was rarely used. Plaintiff’s basic complaint against Dr. Somberg is for malpractice. Dr. Somberg testified that he made no inspection of the rongeur prior to the surgery. However, he stated that in the course of the surgery when the instrument was handed to him by the hospital nurse he made an observation of it to see if the cup or jaw of the rongeur was present, that the edges met and also that the scissor-like jaws of the forceps closed and opened. When he held his hand out for the instrument during surgery his left hand at that time was inserted deep within the wound to hold the nerve root retractor in place on the nerves. He stated: “The inspection is limited to mobility of the handle and — I don’t have to look at the handles to feel the degree of resistance. I look at the cups and see that the edges meet. There was no other component of my examining the instrument beyond those two aspects.” This examination took only a few seconds and he noticed nothing unusual about the instrument.

Dr. David Graubard, whose specialty is general surgery, testified as an expert for plaintiff. He stated that if the particular rongeur was used properly, i. avoiding excessive strain and tortion or twisting, and was not defective, it would not break.

Plaintiff’s claim against the hospital was apparently predicated upon negligence in the maintenance and inspection of the rongeur. Plaintiff’s claim against Lawton and Reinhold was essentially predicated upon a breach of implied warranty of merchantability. John Carroll, an expert witness for Lawton, testified that he examined the instrument in question, performed laboratory tests upon it and found no evidence of faulty workmanship. He was of the opinion that the failure was a result of the instrument being over-strained. He said that the pattern of fracture of the rongeur indicated that the strain ’ was caused by a twisting motion (which Dr. Graubard testified should be avoided in the use of this instrument). Carroll said that the strain could have occurred during the course of one operation or many operations. He also indicated that if the instrument had previously suffered the strain, it could thereafter break even through normal use. He could not pinpoint the time when the instrument was strained.

Testimony was presented regarding the injury to plaintiff as a consequence of the unfortunate incident to which we have alluded. Dr. Somberg performed a subsequent operation for the sole purpose of removing the metal fragment that liad remained in plaintiff’s back.

The trial judge instructed the jury as follows:

The right of the defendants to have the plaintiff bear the required burden is a substantial one and not a mere matter of form. This burden may be sustained, however, on the basis of all of the evidence in this case and the legitimate inferences to be drawn from it. And in this connection you may consider that the defendants were the only ones shown to have any relationship with the pituitary rongeur which broke during the course of the operation. And you may infer that the breaking was attributable to dereliction on the part of one or other of the defendants in this case.

At the conclusion of the trial the judge submitted special interrogatories to the jury. The jury found that the injuries and damages suffered by plaintiff were not proximately caused by the negligence or malpractice of the doctor; that they were not proximately caused by the negligence of the hospital in inspecting and furnishing the instrument to Dr. Somberg, and that the rongeur was not defective — that is, it was reasonably fit for the ordinary purpose for which it was sold and used.

We have carefully reviewed the record in the light of Dolson v. Anastasia, 55 N. J. 2 (1969), and are satisfied that there has been a miscarriage of justice under the law requiring a new trial. The inescapable facts are that plaintiff suffered injuries while unconscious during surgery from an occurrence which by itself bespeaks liability on the part of one or more of the defendants. That portion of the charge to which we have alluded was, in our considered judgment, inadequate in view of the testimony adduced at the trial.

Reason and common sense dictate that the jury additionally should be charged that under the peculiar circumstances of this ease the occurrence itself indicates liability on the part of one or more of the defendants, and that the burden should be shifted to defendants as they are most likely to possess knowledge of the cause of the accident. Each defendant has the duty to come forward with explanatory evidence. NOPCO Chemical Div. v. Blaw-Knox Co., 59 N. J. 274, 282-283 (1971). Cf. Magner v. Beth Israel Hospital, 120 N. J. Super. 529, 534 (App. Div. 1972).

Eor the reasons expressed the matter is reversed and remanded for a new trial as to all defendants.

Seidman, J. A. D.

There is no doubt that the judgment entered in favor of defendants must be reversed and the matter remanded for a new trial. I am convinced that the charge to the jury was so structured that they may well have been misled or confused thereby.

But I am unable to agree with that portion of my colleagues’ opinion which states that the jury should be charged that in the “peculiar circumstances of this case the occurrence itself indicates liability on the part of one or more of the defendants, and that the burden should be shifted to defendants as they are most likely to possess knowledge of the cause of the accident.” Such charge, in effect, instructs the jury that someone is liable and mandates that they return a verdict in favor of the plaintiff and against one or more of the defendants. This, in my view, is a misconception of Nopco Chemical Div. v. Blaw-Knox Co., 59 N. J. 274 (1971). There is a significant difference between what a plaintiff is required to establish in a case of this nature in order to withstand a motion for dismissal and what a jury must consider in order to return an appropriate verdict.

The import of Nopco Chemical Div. v. Blaw-Knox Co., supra, 59 N. J. at 282—283, is that where a plaintiff has a valid cause of action against one or more defendants, but does not know which one or ones, and, because of the circumstances, cannot present affirmative proofs at trial, and the necessary facts are peculiarly within the knowledge of the respective defendants, reason and common sense dictate that the burden, should shift to those parties most likely to possess knowledge of the occurrence to come forward with the facts. The court said:

At the conclusion of plaintiff’s case, the burden will shift to each defendant successively, commencing with Blaw-Knox, to come forward with proofs of its particular part in the overall transaction in explanation or exoneration of its conduct with relation to the damage. Such evidence may include its view of the cause of the damage, which may, of course, differ from any suggested by plaintiff, and may seek to east responsibility upon another defendant or even upon the plaintiff itself. Plaintiff is entitled to the benefit of all such proofs as against any defendant. If any defendant fails to offer proofs, it risks a finding against it on the evidence in the case.
At the conclusion of the entire case, the court may, upon consideration of all the proofs and legitimate inferences therefrom in the light most favorable to plaintiff, direct judgment in favor of any defendant or defendants against whom no evidence or inference of responsibility exists.
The case will go to the jury as to those defendants who remain for its determination as to the party responsible for the damage, under an instruction that, while the burden of persuasion remains on plaintiff, that burden may be sustained on the basis of all the evidence and legitimate inferences therefrom. * * * [at 28A-285]

This is akin to the doctrine of res ipsa, loquitur, which, in a negligence case, traditionally allows an inference of negligence on the part of a defendant if (a) the occurrence itself ordinarily bespeaks negligence, (b) the instrumentality was within defendant’s exclusive control, and (c) there is no indication that the injury is attributable to plaintiff’s voluntary act or neglect. Rose v. Port of New York Authority, 61 N. J. 129, 136 (1972).

The point to be stressed is that, whether the doctrine to be applied is that of res ipsa loquitur, or the broader concept that the circumstances may be such as to give rise to an inference of fault or liability, proof of the occurrence merely protects a plaintiff against having his cause dismissed. lie is entitled to go to the jury on that proof alone. It does not mean, however, that he must recover, unless the inference of fault on the part of one or more of the defendants is so clear and strong that fair and reasonable minded men could not fail to accept it, in which case, of course, the trial court should direct a verdict of liability against the culpable defendant or defendants. See Magner v. Beth Israel Hospital, 120 N. J. Super. 529 (App. Div. 1972).

In this case, as in Maguer, the fact is that plaintiff suffered an injury while unconscious during surgery from an occurrence which bespeaks negligence, or a defective surgical instrument, or both, and from which the jury could conclude from common experience that plaintiff would not have been injured if proper care and skill had been used, or if the surgical instrument had not been defective. The burden thus shifts to each defendant to come forward with proof of his or its particular part in the overall occurrence in explanation or exoneration of his or its conduct. It then becomes the task of the jury, on proper instructions, to determine whether in the final analysis the inference of fault outweighs the explanation.

To charge the jury that the occurrence indicates liability on the part of one or more of the defendants, rather than that fault may be inferred therefrom, is incompatible with the opportunity accorded each defendant to present facts in explanation or exoneration, since it is conceivable the jury might find the explanatory proofs offered by each defendant acceptable. The view of my colleagues that the jury must find one or more of the defendants liable does not explain on what basis or by what standards such determination is to be made, other than by random selection.


source: Caselaw Access Project

author: Allcorn, J. A. D.

license: Public Domain

text:
    SIDNEY BEDERSON AND ZARTLEG DEVELOPMENT CORPORATION, A CORPORATION OF THE STATE OF NEW JERSEY, PLAINTTFFS-APPELLANTS, v. TOWNSHIP OF OCEAN, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANT-RESPONDENT, AND STANLEY L. BENN, INTERVENOR-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued April 15, 1975
    Decided May 2, 1975.

      Before Judges Kolovsky, Lynch and Allcorn.

      Mr. Robert V. Carton argued the cause for the appellants (Messrs. Carton, Nary, Witt & Arvanitis, attorneys).

      Mr. Dennis M. Crawford argued the cause for the respondent (Messrs. Schaefer & Crawford, attorneys).

      Mr. Stanley L. Benn, intervenor-respondent, argued the cause pro se (Messrs. Wilentz, Goldman & Spitzer, attorneys).
   The opinion of the court was delivered by

Allcorn, J. A. D.

It has been recognized that in some circumstances a municipality has the power to impose upon a landowner, as a condition precedent to the issuance of a building permit, the requirement that the landowner submit a site plan of the proposed improvement for the purpose of demonstrating compliance with appropriate development, building and other standards established by the controlling ordinances, and that, under the authority of N. J. 8. A. 40:55-1.13, the municipality may delegate to the local planning board the duty of determining whether the site plan sets forth the requisite data and, if so, whether the proposed improvement complies with the standards fixed. See Kozesnik v. Montgomery Tp., 24 N. J. 154, 184-186 (1957). Whatever the authority of the municipality in this regard, however, it is plain that it does not extend to the imposition of a requirement that a site plan be submitted and approved by the planning board (or any other municipal agency or official) prior to the consideration or approval (recommendatory or final) of an application for a use variance under subsection (d) of N. J. 8. A. 40:55-39 by the board of adjustment or the governing body.

Under the statutory design the Legislature has invested the board of adjustment and the municipal governing body, respectively, with the exclusive power to recommend and to approve use variances, according to specific criteria. That grant of authority, including those criteria, “may not in any way be circumscribed, altered or extended by the municipal governing body.” Duffcon Concrete Products v. Cresskill, 1 N. J. 509, 516 (1949).

Section 705 of the Ocean Township zoning ordinance clearly violates this proscription. It requires that the filing of a use variance application be accompanied with a “site area”; before any action thereon by the board of adjustment, the application shall be referred to the planning board “for site plan approval,” and not until such site plan approval has been granted by the planning board and the approved site plan has been transmitted to the board of adjustment may the latter proceed with the hearing and determination of the use variance application. The imposition of such conditions does indeed alter and interfere with the powers of the board of adjustment, as well as alter and add to the criteria, as fixed and determined by the Legislature. Compare Saddle River Country Day School v. Saddle River, 51 N. J. Super. 589 (App. Div. 1958), aff’d o. b. 29 N. J. 468 (1959); Whispering Waters, Inc. v. Salem Zoning Bd., 126 N. J. Super. 221 (Law Div. 1973). See also, Hill Homeowners v. Passaic Zon. Bd. of Adj., 129 N. J. Super. 170 (Law Div. 1974).

Tihe comments of this court in Saddle River Country Day School v. Saddle River, supra, concerning the delegation of site plan approval to planning boards under N. J. S. A. 40:55-1.13 and the limited nature of that authority, are most apt:

* * * This language [of N. J. S. A. 40:55-1.13] is very broad, but we think its scope is not unlimited. The device cannot be used, willynilly, as a catch-all or depository for just every type of municipal problem. It must be read and interpreted in the light of the context of the whole section, i. e., the broad and general subject of planning “the planning and physical development of the municipality.” In the only judicial appraisals thereof so far, it has been found a valid basis for delegating to the planning board the matter of approval of the details of site plans required by local zoning ordinances as a prerequisite to the issuance of building permits for certain special types of industrial uses. Kozesnik v. Montgomery Township, 24 N. J. 154, 178, 186 (1957) ; Newark Milk and Cream. Co. v. Township of Parsippany-Troy Hills, 47 N. J. Super. 306, 332 (Law Div. 1957). But the present Chief Justice was very careful to point out in the Kozesnik opinion that the legislative decision as to what use should be permitted on the property in question had been fully made in the ordinance and the reference to the planning board was not designed to determine whether a given use should be permitted or some restriction should be relaxed. (24 N. J., at pp. 178, 186). [51 N. J. Super, at 603]

Moreover, and quite apart from the lack of authority in the municipality to so condition the consideration and determination of a use variance application, practical concerns render the requirement on its face unfairly and unreasonably burdensome and obstructive of the rights of the landowner. Fundamentally, the matter of site plan approval and the various principal considerations relevant thereto do not become material to the development and improvement of a tract of land, unless and until the proposed use is or becomes by ordinance or variance a lawful use of that land. In short, these data are of no significance or value before the right to use the premises for the projected use has first been established and the owner has applied for a building permit. See Loechner v. Campoli, 49 N. J. 504 (1967); Ryan v. Woodbridge Tp. Bd. of Adjust., 49 N. J. 520 (1967).

By way of illustration, we note some of the data demanded of these plaintiffs in this matter as a prerequisite to consideration of and action on the site plan by the municipal planning board. First is a tliree-page “site plan checklist” comprising between 60 and 70 separate items, in turn supplemented by a three-page “outline of site plan review application details”, itself containing 34 numbered paragraphs. An opening caveat to the “outline” warns also: “In some circumstances, additional information beyond these may be required of the applicant.” The nature of the data called for ranges from technical and engineering details, including a topographical survey (two-foot intervals), existing and proposed off-site and on-site facilities for water supply and sanitary and storm sewer drainage, details of the proposed building (including rendering and elevations), details of proposed parking and unloading facilities (including surfacing and curb data, and “driveway turning radius”), to the “number, dimensions, size (both sides), height”, location and “sketch elevation” of all signs proposed to be erected, and even the details of “trash storage”.

That plaintiffs’ estimate of the cost of acquiring and supplying to the planning board those of the data normally not required for presentation of the variance application to the board of adjustment is approximately $40,000, simply underscores the patent unreasonableness of the requirement.

Thus, site plans and site plan details concern building, engineering, land coverage and (possibly) planning considerations; they do not involve the zoning considerations inherent in the determination of use variance applications. In such circumstances elementary fairness and orderly procedure will not permit the obtaining of site plan approval to be made a condition precedent to the consideration and determination of an application for a use variance by the board of adjustment or the governing body under N. J. 8. A. 40:55-39 (d).

Accordingly, the order of the Law Division of November 26, 1973, directing that plaintiffs shall “proceed to a conclusion with the application for site plan approval before the Planning Board in accordance with the * * * zoning ordinance,” and further directing that “[o]nly after final action has been taken by the * * * Planning Board shall the matter be heard by the * * * Board of Adjustment,” is reversed and set aside, and the cause is remanded to the Law Division for further proceedings consistent with this opinion.


author: Crane, J. A. D. Kole, J. A. D.

text:
    JOHN SWEENEY AND HELEN SWEENEY, HIS WIFE, PLAINTIFFS-APPELLANTS, v. ERIC PRUYNE, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Submitted October 30, 1974
    Decided November 25, 1974.

      Before Judges Carton, Crane and Kole.

      Messrs. Grabow, Verp, Krulewitz & Finamore, attorneys for appellants (Mr. John W. Finamore, Jr., of counsel and on the brief).

      Messrs. Vaccaro and Osborne, attorneys for respondent (Mr. Robert D. Curran, of counsel and on the brief).
   The opinion of the court was delivered by

Crane, J. A. D.

The trial court based its ruling on the motion for a new trial on the assumption that the jury had disregarded an instruction not to consider any claim for loss of earnings in excess of $7,000 (the amount defendant claimed was set forth in answers to interrogatories), the opinion of defendant’s medical expert that there was no permanent injury and the conclusion that the verdict was excessive.

We have carefully examined the record and find that the trial judge was mistaken in Ms recollection that a limiting instruction had been given to the jury. Moreover, during the trial, the court permitted the introduction of evidence of loss of income after January 1971, the date on which plaintiff’s claim to lost income ceased, according to defendant’s interpretation of the answers to interrogatories. When defendant’s counsel objected to plaintiff’s testimony of income during 1971 and 1972, the judge reviewed the answers to interrogatories and the supplements furnished by letter and concluded that the testimony was properly admissible and that the answers to interrogatories could be used to cross-examine plaintiff as to what plaintiff meant by them. The transcript of the court’s charge contains no instruction to limit consideration of loss of income to $7,000.

While it is true that defendant’s medical expert found no permanent injury as a result of the accident, plaintiff’s treating physician testified that the condition was permanent, that it would not improve, that plaintiff had reached the maximum medical benefit that could be given to him, that the condition would continue for the rest of plaintiff’s life and that it may get worse in time. Plaintiff testified that he could work only two or three days a week. He testified that his income for 1969, the last full year prior to the accident, was $11,800. In 1970, through June, he earned approximately $5,000 and estimated his lost income as between $7,000 and $9,000. Plaintiff further testified that his income for 1971 had been $1800, for 1972 approximately $2,500 and for 1973, until June (the month during which the trial took place), $1100 or $1200. In view of the testimony before the jury, there appears to be no sound basis for the finding that the verdict was excessive.

Ordinarily in evaluating the propriety of the granting or denying of a motion for a new trial the views of the trial judge with respect to the “feel of the ease” are entitled to great deference. Dolson v. Anastasia, 55 N. J. 2 (1969). Where, as here, however, the discretion of the trial judge was' affected by a mistaken recollection of what transpired at the trial, no such deference is warranted. Our independent review of the testimony fails to convince us that the verdict amounted to a miscarriage of justice under the law. As we have noted above, the trial judge admitted testimony of plaintiff’s claims of financial loss after 1971, overruling defendant’s objection that the testimony should have been limited to $7,000. He also admitted medical testimony that plaintiff’s injuries were permanent and that plaintiff could only work two or three days a week. The admission of such testimony relating to continuing damages was properly within the sound discretion of the trial judge and it would not have been proper to limit the jury’s consideration of the evidence. Mazzei v. Nucar Forwarding Co., 105 N. J. L. 218 (E. & A. 1928).

In passing on the motion for a new trial it was not appropriate for the trial judge to disregard testimony concerning contested issues or to place little value on it simply because he was not impressed by it or because he did not believe it. Kulbacki v. Sobehinsky, 38 N. J. 435, 445 (1962). If believed, as it apparently was, the testimony was amply sufficient to justify the damage award. Courts will interfere with a verdict on the ground of ex-eessiveness only with reluctance and never except in a clear case. Hacker v. Statman, 105 N. J. Super. 385, 395 (App. Div. 1969); Budd v. Erie Lackawanna R. R. Co., 98 N. J. Super. 47, 59 (App. Div. 1967), certif. den. 51 N. J. 186 (1968). Even where a trial judge believes that an award appears excessive to him, it does not necessarily follow that a judgment based thereon is the product of mistake, partiality, prejudice or passion. Cestero v. Ferrara, 110 N. J. Super. 264 (App. Div. 1970), aff’d 57 N. J. 497 (1971). In our view, in this case the trial judge unfortunately invaded the province of the jury in evaluating the testimony. Kaplan v. Haines, 96 N. J. Super. 242, 258-259 (1967), aff’d 51 N. J. 404 (1968).

The order granting a new trial is reversed. The matter is remanded with directions that judgment be entered in favor of the plaintiff for the amount of the verdict.

Kole, J. A. D.

(dissenting) My review of this record indicates that although the trial judge gave a reason based on his faulty recollection of his instruction to the jury, basically his determination to award a new trial unless pla.iTit.iff agreed to take $20,000 is grounded on his “feel” of the case. The problem is that he did not articulate his reasons for such a substantial reduction in the verdict or why that amount is more consistent with justice than the jury verdict. It is evident that he believed plaintiff’s claim as to the nature and effect of his injuries and the loss of income in his own business to be greatly inflated.

Accordingly, I would remand the matter to the trial court in order to permit it (a) to consider the error it made in deciding the new trial motion with respect to the limiting instruction to the jury, (b) to determine whether, nevertheless, it would order the remittitur, and (c) if so, to state in detail the reasons therefor and the basis justifying the reduction to $20,000. See Dolson v. Anastasia, 55 N. J. 2 (1969).

I would retain jurisdiction for this purpose.


author: Kole, J. A. D.

text:
    FRANCIS STROINSKI, PLAINTIFF-APPELLANT, v. OFFICE OF THE PUBLIC DEFENDER, STANLEY C. VAN NESS, INDIVIDUALLY AND IN HIS OFFICIAL CAPACITY AS CHIEF PUBLIC DEFENDER AND HERBERT WACHSTEIN, INDIVIDUALLY AND IN HIS CAPACITY AS DEPUTY PUBLIC DEFENDER, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued April 8, 1975
    Decided April 28, 1975.

      Before Judges Carton, Crane and Kole.

      Mr. Herbert O. Brock argued the cause for appellant (Camden Regional Legal Services, Inc., attorney; Mr. Allen S. Zeller and Mr. Wayne R. Bryant on the brief; Ms. Rita L. Bender, of counsel).

      Mr. Michael S. Bokar, Deputy Attorney General, argued the cause for respondent (Mr. William F. Hyland, Attorney General of New Jersey, attorney; Mr. Stephen Skillman, Assistant Attorney General, of counsel; Mr. William C. Rindone, Jr., Deputy Attorney General, on the brief).
   The opinion of the court was delivered by

Kole, J. A. D.

This action for declaratory judgment and injunctive relief involves the validity of that portion of the Public Defender Act, N. J. 8. A. 2A :158A-17, mandating that a lien be filed against the present or after-acquired property of an indigent who is represented by the Public Defender where the value of the services rendered appears to exceed $150. The trial judge upheld the provision. We affirm.

In 1969 plaintiff, qualifying for Public Defender assistance, was represented by an attorney from that office in connection with charges of breaking, entry and larceny. At the time he was given such assistance he signed a reimbursement agreement permitting the Public Defender (Defender) to place a lien against his property and agreeing to repay the Defender for legal services at the rate of $5 a week. He was convicted and his convictions were affirmed on appeal.

The Defender sent plaintiff a notice of lien in the amount of $685 for legal services rendered at trial and thereafter sent him a similar notice in the amount of $957.57 for services rendered and the cost of the transcript on the appeals. No attempt has been made to execute on the liens.

In 1967 the New Jersey Legislature adopted the Public Defender Act, N. J. S. A. 2A:158A-1 et seq. The purpose of the act was to provide for the “realization of the constitutional guarantees of counsel in criminal cases for indigent defendants.” N. J. S. A. 2A :158A-1. An “indigent defendant” was defined as someone charged with an indictable offense who does not have “the present financial ability” to retain an attorney and to provide the necessary expenses of representation. N. J. 8. A. 2A :158A — 2. Eligibility for the services of the Defender is determined by the need of defendant adjudged by the Defender after an investigation of his financial status. N. J. 8. A. 2A:158A — 14; 2A:158A-15.

The statute provides for a reimbursement procedure.

N. J. 8. A. 2A:158A-16 provides:

In all cases where it appears that the defendant has or reasonably expects to have means to meet some part, though not all, of the cost of the services rendered to him he shall be required to reimburse the office, either by a single payment or in installments, in such amounts as he can reasonably he expected to pay; but no default or failure in the making of any such payment shall in any wise affect or reduce the rendering of the services to him. [Emphasis supplied]

N. J. S. A. 2A:158A-17, the provision here in controversy, states:

The reasonable value of the services rendered to a defendant pursuant to this act may in all eases be a lien on any and all property to which the defendant shall have or acquire an interest. The Public Defender shall effectuate such lien whenever the reasonable value of the services rendered to a defendant appears to exceed $150.00 and may effectuate such lien where the reasonable value of those services appears to be less than $150.00.
To effectuate such a lien, the Public Defender shall file a notice setting forth the services rendered to the defendant and the reasonable value thereof with the Clerk of the ’Superior Court. The filing of' said notice with the Clerk of the Superior Court shall from the date thereof constitute a lien on said property for a period of 10 years, unless sooner discharged and except for such time limitations shall have the force and effect of a Judgment at Law. Within 10 days of the filing of the Notice of Lien, the Public Defender shall send by certified mail, or serve personally, a copy of such notice with a statement of the date of the filing thereof to or upon the defendant at his last known address. If the Public Defender shall fail to give notice, the lien shall be void.

N. J. 8. A. 2A:158A-18 orders the Clerk of the Superior Court to provide separate books for the recording of said liens, “properly indexed in the name of the judgment debtor.” N. J. 8. A. 2A:158A-19 provides that the Defender “shall do all things necessary and proper to collect all moneys due to the State by way of reimbursement for services rendered”; that he shall have all of the remedies “which may be had or taken for or upon the recovery of a judgment in a civil action,” including the institution of court actions or proceedings for such purposes, and that in any such proceedings or action, defendant may contest the value of the services rendered by the Defender. Pursuant to N. J. 8. A. 2A:158A-20, the Defender is authorized to compromise and settle any claim, for services “whenever the financial circumstances of said person are such that in the judgment of the Public Defender the best interest of the State will be served by such compromise and settlement.”

The Public Defender Act was the Legislature’s response to decisions of the United States Supreme Court and the New Jersey Supreme Court implementing the constitutional guarantee to an indigent defendant in a criminal case of the right to counsel and the related costs of criminal proceedings at public expense. That guarantee has been firmly established on the basis of equal protection and the Sixth Amendment’s grant of the fundamental right to assistance of counsel in a criminal case, made applicable to the states by the Due Process Clause of the Fourteenth Amendment. See Griffin v. Illinois, 351 U. S. 12, 76 S. Ct. 585, 100 L. Ed. 891 (1956) ; Gideon v. Wainwright, 372 U. S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963); State v. Horton, 34 N. J. 518, 534 (1961); State v. Rush, 46 N. J. 399 (1966); State v. Welch, 46 N. J. 57 (1965).

Plaintiff first contends that N. J. 8. A. 2A:158A-17 constitutes an invalid encroachment by the Legislature upon the rule-making authority of the New Jersey Supreme Court. The argument is without merit.

This State has long been a leader in the matter of providing counsel for indigent defendants. See State v. Horton, supra, 34 N. J. at 522-523. The most significant New Jersey case, prior to the establishment of the Office of the Public Defender is State v. Rush, supra. There the court was faced with the question of whether counsel assigned to defend indigents charged with a crime other than murder was entitled to receive from the county or the State compensation for services and reimbursement of out-of-pocket expenses. Chief Justice Weintraub stated that while it was the continuing responsibility of the bar to defend such indigents, the bar should not be required to continue to absorb the full cost thereof. The court found ample evidence of a legislative will that the cost of criminal prosecutions, including the services of appointed counsel, be paid by the county, rather than the State. It, however, delayed the effective date upon which the members of the bar would be relieved of the burden they were then bearing to serve without fee in nonmurder indigent criminal cases in order to give the Legislature an opportunity to decide whether the State’s obligation to provide such indigents with counsel should be met by the then system of assignment in individual cases, or by a public defender, or some combination of both. 46 N. J. at 415.

The court also indicated that a court rule relating to out-of-pocket disbursements of such assigned counsel was not required in view of its opinion in State v. Horton, supra. What it stated in that connection applies equally to the matter of payment for 'services of such counsel. 46 N. J. at 415.

Thus, the matter of providing counsel for indigent defendants in criminal cases, including the allocation and method of payment of costs thereof, was expressly left by the Supreme Court to the Legislature. Under these circumstances it cannot be said that the subsequent enactment by the Legislature of the Public Defender Act in response to the court’s invitation constitutes an invalid encroachment by it of the court’s rule making power. In fact, in Rush, the court took pains to note "without exploring the subject at all” the question of whether the judiciary has the inherent power to order payment of counsel fees for indigent criminal defendants in the absence of statute. 46 N. J. at 413.

The situation here is not unlike that discussed by the court in Busik v. Levine, 63 N. J. 351, 367 (1973), app. dism. 414 U. S. 1106, 94 S. Ct. 831, 38 L. Ed. 2d 733 (1973), -when it observed that although, arguably, evidence is both procedural and substantive, nevertheless the rules of evidence were adopted cooperatively by the three branches of government.

The fact that the Supreme Court has general authority under its rule-making power to award and allocate counsel fees does not mean that in appropriate circumstances the Legislature, with that court’s acquiescence, maj not act in this area where a public interest or obligation is involved. See Driscoll v. Burlington-Bristol Bridge Co., 8 N. J. 433, 493-496 (1952), cert. den. 344 U. S. 838, 73 S. Ct. 25, 97 L. Ed. 652 (1952). Cf. Busik v. Levine, supra, 63 N. J. at 372 and 373, n. 10; McMullen v. Maryland Cas. Co., 127 N. J. Super. 231, 237 (App. Div. 1974).

Additionally, it is not without significance in this respect that the Public Defender Act itself refers to the Defender’s duty, in performing its services, to “adhere * * * to the standards * * * of performance established * * * by the Supreme Court of New Jersey in the execution of its duty to supervise the practice of law; and the office [of the Defender] shall furnish to such court materials and data as may be necessary to the measurement of the adequacy of the performance” under the act. N. J. S. A. 2A:158A-13. See also, N. J. S. A. 2A:158A-22 providing for the Defender to report annually to the Legislature, the Governor and the Supreme Court.

The rules specifically recognize and refer to the Office of the Public Defender and in no wise indicate any disapproval or inapplicability of the reimbursement or lien provisions of the statute creating that office. See B. 1:13-2; 2:7-2, 3:4-2; 3:22-6; 3:27-1; 5:3-3(a). Indeed, the initial predecessor of these rules was B. B. 1:12-9, adopted June 30, 1967, following the enactment in that year of the Public Defender Act, which was to becomp effective July 1, 1967. The rules have been amended since 1967 without any endeavor to abrogate or nullify these provisions of the act. Such acquiescence by the court supports the conclusion that they do not encroach on its rule-making authority. See State in the Interest of Antini, Jr., 58 N. J. 488, 492 (1969).

In opinions subsequent to the statute our Supreme Court has further expressly recognized the Defender as the statutory counsel for adult indigents charged with indictable offenses and for indigent juvenile offenders in danger of commitment. See State in the Interest of Antini, Jr., supra, 53 N. J. at 495, stating that the “legislature has wisely provided a state system” for this purpose and that it must provide sufficient money to the Defender to function expeditiously. See also Rodriguez v. Rosenblatt, 58 N. J. 281, 285-296 (1971).

There is no substance to plaintiff’s claim that there is a conflict between the provisions of the Public Defender Act here involved and the court rules. The rules relied on, concerning compensation of counsel and other costs involved in the defense of indigents, were not intended to cover the Public Defender’s office or its duties or functions under the Public Defender Act. They either involve attorneys assigned by the court to indigents charged with nonindictable offenses who are constitutionally or otherwise entitled by law to counsel without cost under the old rotation system referred to in Rush, or the waiver of fees and costs in any indigent case irrespective of who represents him. See R. 1:13-2(a) (b); 2:7-1; 2:7-2; 3:4-2; 3:22-6; 3:27-2. See also Rodriguez v. Rosenblatt, supra; In re Adoption of a Child by M. W., 116 N. J. Super. 506, 513 (App. Div. 1971).

In view of what we have said it is plain that the Legislature has not invaded the jurisdiction of the Supreme Court rule-making power in enacting N. J. S. A. 2A :158A-17 or 2A:158Á-16. Bather, the adoption of the entire statute, including these provisions, was in response to suggestions by the court itself in a cooperative effort to meet the constitutional requirements relating to indigent defendants in criminal cases. There is no basis for concluding that the court rules in any wise preempt the area relating to reimbursement of the Defender for the expense of representing a defendant or the assertion of a lien therefor under the act.

Plaintiff argues that N. J. 8. A. 2A :158A-17 unconstitutionally creates a “chilling effect” upon an indigent’s right to counsel. We disagree.

The answer to this contention is to be found in Fuller v. Oregon, 417 U. S. 40, 94 S. Ct. 2116, 40 L. Ed. 2d 642 (1974). That case holds that as long as a statute authorizing recoupment of expenses incurred by the state in defending an indigent in a criminal case does not offend equal protection by depriving the indigent against whom a judgment therefor has been obtained of rights afforded other judgment debtors and is otherwise not unreasonable, the right to counsel has neither been denied nor chilled thereby. Compare James v. Strange, 407 U. S. 128, 92 S. Ct. 2027, 32 L. Ed. 2d 600 (1972). See also, United States v. Durka, 490 F. 2d 478 (7 Cir. 1973); People v. Amor, 12 Cal. 3d 20, 114 Cal. Rptr. 765, 523 P. 2d 1173 (Sup. Ct. 1974); Opinion of Justices, 109 N. H. 508, 256 A. 2d 500 (Sup. Ct. 1969); Wicks v. City of Charlottesville, 215 Va. 274, 208 S. E. 2d 752 (Sup. Ct. 1974).

As Fuller, supra, said:

The fact that an indigent who accepts state-appointed legal representation knows that he might someday be required to repay the costs of these services in no way affects his eligibility to obtain counsel. The Oregon statute is carefully designed to insure that only those who actually become capable of repaying the State will ever be obliged to do so. Those who remain indigent or for whom repayment would work “manifest hardship” are forever exempt from any obligation to repay.
We live in a society where the distribution of legal assistance, like the distribution of all goods and services, is generally regulated by the dynamics of private enterprise. A defendant in a criminal case who is just above the line separating the indigent from the non-indigent must borrow money, sell ofE his meager assets, or call upon his family or friends in order to hire a lawyer. We cannot say that the Constitution requires that those only slightly poorer must remain forever immune from any obligation to shoulder the expenses of their legal defense, even when they are able to pay without hardship. [417 U. S. at 53, 94 S. Ct. at 2124.]

Our review and interpretation of both the lien and reimbursement provisions of the statute here involved satisfies us that they do not chill any constitutional right of an indigent defendant covered thereby or deprive him of equal protection under Fuller. As heretofore indicated, we construe “services” to include not only counsel fees but other expenses actually incurred by the Defender in representing the indigent.

Defendant need only reimburse the Defender if “it appears that * * * [he] has or reasonably expects to have means to meet some part, though not all, of the cost of the services rendered to him,” and in such event “he shall be required to reimburse the office, either by a single payment or in installments, in such amounts as he can reasonably be expected to pay.” But “no default or failure in the making of any such payment shall in any wise affect or reduce the rendering of the services to him.” N. J. 8. A. 2A: 158A-16.

The provisions of N. J. 8. A. 2A.T58A-17 vest discretion in the Defender to effectuate a lien on defendant’s property whenever the reasonable value of the services rendered appears to be less than $150 and requires the lien to be effectuated when such value appears to exceed $150. Practical considerations rationally sustain this monetary classification. Accordingly, it does not violate equal protection. Cf. Fuller, supra, 417 U. S. at 46, 94 S. Ct. 2116. Indeed, the fact that the lien is mandatory only where the value of services is in excess of $150 is more protective of indigent defendants than the statute considered in Fuller.

Moreover, although designated a “lien”, it only has the “force and effect of a Judgment at Law”, except that it is valid and may only be subject to execution for a period of ten years “unless sooner discharged.” It is void unless within ten days of the filing of the notice of lien the Defender, either by certified mail or personal service, serves on defendant a copy thereof with a statement of the date of fiLing. N. J. 8. A. 2A:158A-17 and 19.

Since an indigent against whom the lien is filed has all of the exemptions, rights and protections of any judgment debtor, there is no equal protection problem. See, e. g., R. 4:59-1; 4:50-1; 4:50-3; 4:65-2; 4:65-5; N. J. 8. A. 2A:17-19; N. J. 8. A. 2A:17-55. See generally, 2A: 17-1 et seq. Additionally, while the lien may be placed against all of his property, present and after-acquired, he is protected from the burden of financial hardship not only by being treated in the same manner as any judgment debtor but also by being given additional benefits under the Public Defender Act.

Thus, the Defender is authorized to compromise and settle any claim for services whenever the financial circumstances of the indigent are such that in the Defender’s judgment “the best interest of the State will be served” thereby. N. J. 8. A. 2A:158A-20. Again, in any action or proceeding, either to collect moneys due for reimbursement or to enforce the lien or judgment, the indigent may contest the value of the Defender’s services. N. J. 8. A. 2A: 158A-19. Moreover, although the statute does not expressly so provide, we have concluded that the evident intent of the Legislature, gleaned from the pertinent provisions of the act, is that in any such action or proceeding the indigent may seek a determination by the court of the extent to which, if at all, recovery of all or any part of the amount due would impose a manifest financial hardship and, therefore, should not then be enforced as a debt or a lien or should then be reduced to an amount he reasonably may be expected to pay. Cf. 79-88 Thirteenth Ave. Ltd. v. De Marco, 44 N. J. 525 (1965). The notice to him of the action or other proceeding must advise him of this right of contest.

The procedure, including the time and method of serving the notice and the contents thereof, would normally be in accordance with the requirements of the action or proceeding involved, as set forth in the applicable rule or statute. Thus, if the proceeding is an action to collect the moneys due, the complaint should contain a specific notice of the indigent’s right of contest. If the proceeding is to enforce the judgment or lien by way of execution, the notice should conform to the governing statute or rule and, in addition to the provisions required thereunder, should contain a statement that he may contest the value of the services and his financial ability to pay. Compare R. 4:59-1(c); 4:65-2; 4:65-5. If there is no existing rule or statute requiring advance personal notice either by certified mail to the debtor’s last known address or personal service before a sale of the property involved, such written notice should be given, within a reasonable time prior to the sale, indicating the nature of the proceeding and describing his right of contest. The indigent, just as any other judgment debtor, also may seek relief from the judgment or a modification or discharge of the lien under existing law, or affirmatively move to have the lien discharged or otherwise modified for good cause on notice to the Defender. See, e. g., B. 4:50-1; 4:50-3; Secretary of State v. GPAK Corp., 95 N. J. Super. 82 (App. Div. 1967); Heljon Management Corp. v. Di Leo, 55 N. J. Super. 306 (App. Div. 1959). We are of the view that the Public Defender Act contemplates that where a proceeding is either to enforce the judgment or lien or to discharge or modify the same, it should be accomplished, wherever possible, iu a summary fashion under B. 4:67.

As we read Fuller, it does not require, as a matter of constitutional right, that the indigent be afforded an opportunity at a court hearing to show his financial inability to pay. Nevertheless, we note that the court commented on the fact that the judgment execution statute of the state there involved provided for a hearing before execution could be levied, and the recoupment statute afforded the indigent an opportunity to show at any time that recovery of the costs of his defense would impose “manifest hardship.” 417 U. S. at 50, n. 11, 94 S. Ct. 2116. If this interpretation of Fuller is erroneous, the construction we have given our Public Defender Act in this respect will protect it from possible constitutional infirmity on this ground. See State v. De Santis, 65 N. J. 462 (1974); N. J. Assoc. Ins. Agents v. Hospital Serv. Plan, 128 N. J. Super. 472, 487 (App. Div. 1974).

Plaintiff also predicates a challenge to N. J. S. A. 2A :158A-17 on its alleged deficiency on due process grounds in permitting liens to be filed without a prior hearing. This argument is also without substance.

As originally enacted in 1967, the statute, N. J. S. A. 2A:158A-17, required the Defender to have a court, on the basis of an affidavit of services, establish the reasonable value of his services. After such adjudication, the lien was filed. In 1969 that provision and the section dealing with collection of moneys due, N. J. S. A. 2A:158A~19, were amended so as to (1) eliminate the necessity of a court proceeding establishing the value of services before the filing of the notice of lien; (2) provide for the filing of such notice by the Defender after he determines such value; (3) require a copy of the notice of lien to be served on defendant within ten days of its filing in order that a valid lien be established, and (4) permit, in any action or proceeding to recover moneys due for reimbursement or to enforce the lien or a judgment, a contest by defendant of the value of the services and, as we now hold, the extent to which the same should be awarded or enforced in view of defendant’s then and reasonably foreseeable ability to pay.

It is evident from the present statutory scheme, as we have construed it, that the indigent is given not only adequate notice of the lien but also an ample opportunity thereafter to contest the amount thereof and its enforcement, to satisfy the demands of due process. See Fuller v. Oregon, supra, 417 U. S. 50, n. 11, 94 S. Ct. 2116. United States v. Durka, supra; People v. Amor, supra; Foosaner v. Director, Div. of Taxation, 58 N. J. 57, 62-63 (1971); Secretary of State v. GPAK Corp., supra. He is afforded an appropriate judicial hearing under the statute before any lien is fully executed or his property is actually taken from him. Compare North Georgia Finishing Inc. v. Di-Chem, Inc., 419 U. S. 601, 95 S. Ct. 719, 42 L. Ed. 2d 751 (1975); Mitchell v. W. T. Grant Co., 416 U. S. 600, 94 S. Ct. 1895, 40 L. Ed. 2d 406, 416 (1974); Fuentes v. Shevin, 407 U. S. 67, 92 S. Ct. 1983, 32 L. Ed. 2d 556 (1972); dissenting opinion of Justice Pashman in King v. South Jersey Nat’l Bank, 66 N. J. 161, 187 (1974).

Plaintiff contends that an indigent defendant may be misled by being informed at his arraignment, under B. 3:4-2, of “his right to have counsel furnished without cost.” Hot so. He is, in fact, provided with counsel without cost. So long as he remains indigent, there is no cost to him. It is only when he is deemed financially able to pay that he is responsible therefor. Additionally, whatever erroneous impression he may get by such advice is clarified by the practice in the Defender’s office. The reimbursement agreement that every defendant is requested by the Defender to sign provides in part:

It has been explained to me that upon the completion of the services rendered to me by the Public Defender, the Court will determine the reasonable value of said services and this sum shall be a lien on any and all property which I either presently own or shall in the future acquire until the same is fully paid.

The agreement contains an acknowledgment by a staff member of the Defender’s office that before it was signed by the indigent, its contents were “first made known to him.” If a client has an objection to the reimbursement agreement, it is explained that he need not sign it and that he will still be represented, but that at the end of the Defender’s representation, a lien will be placed against his property.

Por the foregoing reasons, the judgment is affirmed.

      Although technically only the lien provision is under attack, we consider its relationship to the reimbursement section of the statute, N. J. S. A. 2A:158A-16, hereafter mentioned, to be so close as to justify a determination with respect to the validity of that section as well. Moreover, reading the various provisions of the statute in pari materia, as we should, we are satisfied that the term “services” in both N. J. S. A. 2A:158-16 and 17 covers as well other necessary expenses of representation, such as, for example, transcript costs on appeal. See N. J. S. A. 2A:158A-2 and 14.

      By subsequent amendments the Defender is also required to represent juvenile offenders where institutional commitment may result, N. J. 8. A. 2A -.158A-24, as amended by L. 1974, c. 33; effective June 1, 1975, persons involved in parole violation proceedings, and effective June 1, 1976, those charged with disorderly persons offenses or with the violation of any law, ordinance or regulation of a penal nature where there is a likelihood of imprisonment or “any other consequence of magnitude.” L. 1974, c. 33. See R. 5:3-3(a) relating to Defender representation of juvenile offenders under the statute.

        N. J. S. A. 2A:158A-25, relating to representation of persons under 21 years of age, requires that the financial circumstances of the parents or legal guardians also be considered in determining eligibility for services, and entitles the Defender to recover the cost of such services from them to the same extent and in the same mannr “as is provided” under the statute. R. 5 :3-3(a) requires the court to refer a juvenile, if he and his guardian or custodian are indigent, to the Defender where permitted by the statute.

      The report “shall include all * * * data on the operations of the office, the costs *■ * * [and] recommendations” for statutory and court rules changes.

      We assume that services valued at $150 would come within the Defender’s discretionary authority.

      This form of agreement may need revision to indicate that the value is determined by the court when an action to collect or a proceeding to enforce the lien or judgment is instituted.


author: Halpern, P. J. A. D.

text:
    SAUL J. ZUCKER, SUBSTITUTED ASSIGNEE FOR THE BENEFIT OF CREDITORS OF JEROME R. ROSS, INDIVIDUALLY AND T/A J. R. ROSS & CO., PLAINTIFF-APPELLANT, v. HARRY SILVERSTEIN, TRUSTEE, AND ANNE K. SILVERSTEIN, DEFENDANTS-RESPONDENTS, AND EDWARD FRIEDMAN AND MAURICE POLKOWITZ, INTERVENORS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued April 15, 1975
    Decided April 30, 1975.

      Before Judges Halpern, Crahay and Wood.

      Mr. Saul J. Zucker argued the cause for appellant (Messrs. Zucker, Lowenstein, Gurny, Facher and Zucker, attorneys).

      Mr. Sam Weiss argued the cause for all respondents.

      Mr. Lawrence Levitt argued the cause for respondents Harry Silverstein, trustee, and Anne K. Silverstein (Messrs. Silverstein, Bloom & Levitt, attorneys).

      Mr. Kenneth L. Abrams argued the cause for intervenors respondents Edward Friedman and Maurice Polkowitz (Messrs. Friedman, Kates & Uscher, attorneys).
   The opinion of the court was delivered by

Halpern, P. J. A. D.

Before considering the grounds advanced for reversal of the judgment dismissing appellant’s complaint at the end of his proofs, it will be helpful to summarize the factual background as demonstrated by the record.

By three deeds dated September 8, 1966 Jerome R. Ross acquired title, in his individual name, to valuable real property located in Essex County from Pleasant Fair, Inc., Liberty Holding Co., Inc. and L. D. L. Corporation. These deeds were promptly recorded in the Essex County Register’s Office.

By deeds dated April 15, 1967 and March 29, 1968 Jerome R. Ross and Lee Ross, his wife, acquired title as tenants by the entirety to real property located in Essex County from Mortimer C. Tompkins and Helen L. Tompkins, his wife. These two deeds were also promptly recorded in the Essex County Register’s Office.

By deed dated July 20, 1972 and recorded July 21, 1972 in the Essex County Register’s Office the Rosses conveyed to “Harry Silverstein, Trustee” all their right, title and interest in the real property acquired by the five deeds heretofore mentioned, excepting therefrom so much thereof as had been previously conveyed by them to others. The deed did not set forth for whom and under what conditions Silverstein was to act as trustee. However, attached to the deed was an affidavit by Jerome R. Ross which stated:

STATE OF NEW JERSEY)
COUNTY OF ESSEX ) ss' :
JEROME R. ROSS, being duly sworn according to law, upon his oath deposes and says:
1. I am one of the Grantors in the annexed deed.
2. I have held the aforementioned property as Trustee pursuant to a declaration of trust between myself and several other individuals.
3. The sole purpose of this transfer is to substitute Harry Silver-stein as Trustee in my place and stead, and all other items in connection therewith remain the same.
4. There is no consideration being paid or obligations being assumed by the Grantee or any other change in the trust other than the person of the trustee.
Subscribed and sworn /s/ Jerome R. Ross
to before me this 20th JEROME R. ROSS
day of July, 1972
/&/ Ruth C. Atkin
RUTH G. ATKIN
Notary Public of New Jersey
My Commission Expires Apr. 27, 1975

Significantly, the affidavit avers that he held the property as trustee when in fact two of the parcels were held by the entirety.

By a carefully drawn instrument designated “Partnership Agreement,” purportedly made in the year 1967 but otherwise undated and unacknowledged, but signed by Philip Pixel, Edward Eriedman, Jerome R. Ross, Maurice Polkowitz and Jerome R. Ross, trustee, the parties designated Jerome R. Ross as trustee of certain of the lands and premises hereinbefore mentioned for the general purpose of forming a partnership to develop and sell real estate. Their respective interests in the partnership were fixed at 30% for Pixel, 10% for Eriedman, 10% for Polkowitz and 50% for Ross. This instrument was never recorded in the Essex County Register’s Office, but found its way into the pleadings filed in this cause when attached as an exhibit to Polkowitz’s affidavit on a motion to intervene, as will hereinafter appear.

On August 30, 1972 Jerome R. Ross, individually and trading as J. R. Ross & Co., made a written assignment for the benefit of his creditors to James T. Kirk pursuant to the provisions of N. J. S. A. 2A :19-1 et seq. It was filed on September 7, 1972 in the Union County Register’s Office. When Kirk became seriously ill in December 1972 the assignment judge of Union County appointed appellant Saul J. Zucker as substituted assignee. The assignment, sworn to by Ross, indicated that he had assets of $575,640 and liabilities of over $1,000,000.

Following an investigation by appellant, wherein the facts of record above 'mentioned became known to him,, he instituted the present suit in the Superior Court, Chancery Division, Essex County, to compel Silverstein and his wife to convey to him the lands and premises he had acquired from the Rosses as trustee, by the deed of July 20, 1972. His complaint alleged that the conveyance was made in fraud of creditors and while insolvent or contemplating insolvency, contrary to N. J. S. A. 2A:19-3.

The Silversteins answered the complaint and asserted that Harry Silverstein held title as substituted trustee for Boss, presumably under the aforedescribed unrecorded partnership agreement. They further alleged that appellant’s interest in the partnership realty was limited to Boss’ interest therein, and that appellant had no interest in the realty per se. Cross-motions for summary judgment were filed returnable June 15, 1973 but carried to June 29, 1973. Between June 15, 1973 and June 29, 1973 Polkowitz and Friedman filed separate applications for leave to intervene. Both applicants essentially took the same legal position as advanced by Silverstein in asserting the alleged unrecorded partnership agreement and setting forth the moneys they had advanced in connection therewith. "We note at this point that the alleged partners-intervenors had also filed their individual claims with appellant as general creditors of Boss.

On June 29, 1973 Judge Kimmelinan heard full argument on cross-motions for summary judgment and the applications to intervene. On July 25, 1973, after considering all the proofs presented, the judge filed and mailed copies of his letter opinion to all counsel, including counsel for the intervenors, wherein he granted summary judgment in favor of appellant. He found that the conveyance to Silverstein, as trustee, by the Bosses was a preference in violation of N. J. S. A. 2A:19-3. He directed counsel to present an appropriate order and ordered Silverstein to execute and deliver a deed to appellant for the benefit of all creditors.

Before the judgment could be signed Silverstein and the intervenors moved for reargument. The motion was argued on September 14, 1973 and decision was reserved. On September 21, 1973 Judge Kim.melman disqualified himself on the limited issue of the title acquired by Ross individually, reserved all other issues to himself, and referred the title issue to Judge Antell. At the same time he permitted the intervenors to participate in the reargument.

Thereafter, Friedman filed an answer and counterclaim to appellant’s complaint, and Polkowitz filed an answer thereto. In effect, once again Friedman and Polkowitz took the same legal position in their pleadings as advanced by Silverstein.

Thereafter, the parties made cross-motions for summary judgment on the limited issue referred to Judge Antell. These motions were denied on November 7, 1973. On November 20, 1973 Judge Kimmelman signed an order referring the entire case for disposition to Judge Antell. We assume that by so doing he intended the entire matter to be heard by Judge Antell as though he had never considered it. Judge Antell set forth the issues in the pretrial order as being:

7. Application of recording statutes (R. S. 46:16-1) and 22-1; Effect of R. S. 2A:19-1, et seq. and 2A:20-6) on the transfer of the real estate without consideration and within 40 days of filing the assignment for the benefit of creditors; existence of partnership between Ross and the Intervenors and the legal relationship arising therefrom; transfer of real estate to the defendant as a preference under R. S. 2A :19-3: priority as between trust beneficiary and general creditors where trust declaration was unrecorded: whether the Recording Acts apply to the Intervenor’s interest in the 1967 partnership agreement; application of Y. J. S. A. 42:1-26; waiver and estoppel by the intervenors arising from needless delay to the detriment of the general creditors.

At the trial Ross, who was called as appellant’s first witness, testified he had filed the assignment for the benefit of creditors (assignment). Thereafter, on the advice of his personal counsel who was present, he refused to answer on Fifth Amendment grounds all questions pertaining to the issues involved, e. g.: he refused to testify that he recognized or executed the July 20, 1972 deed to Silverstein, as trustee; he refused to testify whether he was insolvent or contemplating insolvency on July 20, 1972; he refused to admit he executed the assignment; he refused to testify whether the schedules of assets and liabilities annexed to the assignment represented his financial condition as of the date of his filing, and he refused to testify to his acquisition of the real property by the three deeds in 1966 from Pleasant Fair, Inc., Liberty Holding Co., Inc. and L. D. L. Corporation. At this point counsel for Eoss indicated to the trial judge and all counsel that the Fifth Amendment privilege would be claimed as to all questions pertaining to the issues before the court. With that, appellant asked no further questions. It should be noted here that neither counsel nor the trial judge challenged Eoss’ basis for refusing to answer.

Alvin Eglow, the certified public accountant for Eoss, testified that he prepared a financial statement for Eoss, trading as J. E. Eoss & Company, for 1971. He testified, in brief, based on Eoss’ records and representations, that the liabilities exceeded the assets by about $500,000 on December 31, 1971. In response to the trial judge’s questioning he expressed the opinion that between December 31, 1971 and July 20, 1972, when Eoss conveyed to Silverstein, his financial condition did not improve although he had no exact knowledge of what had transpired during that interval.

Appellant then offered into evidence some exhibits, most of which the trial judge excluded. He permitted appellant to read into the record the names of the creditors who had filed claims with him, totalling $1,905,812.09. Among the creditors listed were Marion Fixel for $425,000 and defendant Silverstein for $1,152,833.55 (this claim apparently also included claims of some of the alleged partners).

The trial judge, without requiring any proofs from the Silversteins or the intervenors, dismissed appellant’s complaint. In dismissing the complaint the trial judge, relying on Sokol v. Fidelity Union Trust Co., 138 N. J. Eq. 429 (E. & A. 1946), held that appellant had not proved Ross’ insolvency or that he was contemplating insolvency, and that the conveyance to Silverstein, as trustee, was not a preferred transfer to a creditor in violation of N. J. S. A. 2A:19-3. He viewed Ross’ connection with the alleged partnership as a trust relationship and not a debtor-creditor relationship. The appeal is from the judgment entered on that determination. We reverse.

At the outset we point out that we do not understand why the trial judge, in making his brief findings, appeared to place significance upon the fact that some of the testimony relating to insolvency concerned J. R. Ross & Co. as distinguished from Jerome R. Ross, individually. The assignment was made by Jerome R. Ross, individually and trading as J. R. Ross & Co. As far as the record indicates, Ross was J. R. Ross & Co., a mere trade name he used for his own purposes, even though his wife’s name appeared on the trade name certificate. It is axiomatic that an individual using a trade name does so for his personal convenience and motive, but that he personally remains liable for all debts incurred. In other words, one using a trade name does not create a separate entity. We must assume, since there is nothing shown to the contrary, that Ross utilized N. J. 8. A. 56 :1 — 1 et seq. in doing business under the trade name of J. R. Ross & Co. when it suited his purposes.

I

JUDGE KIMMELMAN’S DISQUALIFICATION

While there may be some question as to whether Judge .Kimmelman’s disqualification should be considered as plain error, we prefer to pass upon the merits.

When this matter was first heard by Judge Kimmelman he advised all counsel before commencing the hearing that he had represented the grantors in the three deeds to Jerome R. Ross, individually, dated September 8, 1966, as previously mentioned. He told them he had drawn the contracts and the deeds as instructed by the parties, and knew of no trust agreement with respect thereto. He further advised counsel that he saw no reason to disqualify himself, and counsel at least impliedly assented thereto. He subsequently disqualified himself because on reflection he had concluded that his connection with the 1966 transaction might in some way give the appearance that he had acquired some knowledge which would prevent his impartial disposition of the issues before him.

We recognize and appreciate appellant’s concern over the “timing” of the disqualification since Judge Kimmelman had already rendered a letter opinion in his favor. The disqualification ultimately led to divergent opinions, which end result could reasonably have been anticipated and, therefore, Judge Kimmelman should have disqualified himself only if that course of action was clearly required at that point in the case. In other words, he might better have disqualified himself as soon as he became aware of his connection with the matter.

However, we have reviewed the circumstances surrounding the disqualification and find no abuse of discretion on Judge Kimmelman’s part warranting reversal. While we do not believe disqualification was required under B. 1:12-1 (N. J. 8. A. 2A:15-49), nevertheless ho had sufficient association with the transactions at issue which could give the appearance of judicial impropriety. We are certain he disqualified himself simply out of an overabundance of eaution.

Having determined that the disqualification should not result in a reversal, there is no substance to appellant’s contention that Judge Kimmelman’s orders referring the matter to Judge Amtell and granting reargument were tantamount to granting respondents a new trial. No formal judgment having been signed by Judge Kimmelman, he had the inherent power to reconsider his views and do whatever was required to accomplish justice between the parties. See State v. Wolak, 33 N. J. 399 (1960), cert. den. 365 U. S. 822, 81 S. Ct. 710, 5 L. Ed. 2d 701 (1961).

II

THE DISMISSAL OF THE COMPLAINT AT THE END OF APPELLANT’S PROOFS.

In determining motions for involuntary dismissal made at the close of a plaintiff’s proofs, trial judges have been instructed in Dolson v. Anastasia, 55 N. J. 2 (1969), to use the following criteria:

In the case of motions for involuntary dismissal, the test is, as set forth in R. 4:37-2(b) and equally applicable to motions for judgment, whether “the evidence, together with the legitimate inferences therefrom, could sustain a judgment in * * * favor” of the party opposing the motion, i. e., if, accepting as true all the evidence which supports the position of the party defending against the motion and according him the benefit of all inferences which can reasonably and legitimately be deduced therefrom, reasonable minds could differ, the motion must be denied. Bozza v. Vornado, Inc., 42 N. J. 355 (1964) ; Bell v. Eastern Beef Co., 42 N. J. 126 (1964) ; Franklin Discount Co. v. Ford, 27 N. J. 473, 490 (1958). The point is that the judicial function here is quite a mechanical one. The trial court is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the party opposing the motion. [55 N. J. at 5-6]

See also, Nopco Chemical Div. v. Blaw-Knox, Co., 59 N. J. 274, 282-283 (1971). The criteria set forth in Dolson and Nopco are particularly applicable to complex transactions wherein fraud or other inequitable conduct is charged because in such instances the facts are peculiarly within the possession, and knowledge of the parties charged with the improper conduct.

Testing tlie evidence by the standards outlined, we are satisfied that a prima facie case was spelled out and that the judgment of dismissal should not have been granted. The trial judge prematurely and mistakenly undertook to weigh the evidence and should have awaited the presentation of respondents’ proofs, together with the cross-examination in connection therewith. Lyons v. Hartford Insurance Group, 125 N. J. Super. 239 (App. Div. 1973).

It is undisputed that Ross’ assignment was made within four months of his conveyance to Silverstein as trustee. N. J. S. A. 2A:19-3 makes every preferential transfer to a creditor or person under liability for him within four months before making such assignment, while the debtor is insolvent or contemplating insolvency, void as to the assignee. N. J. S. A. 2A :19-14 gives the assignee the status of a judgment creditor who has levied against the assignor and his property as of the date of the assignment. See, to the same effect, N. J. S. A. 12A:9-301(3) when dealing with like situations under the Uniform Commercial Coder, In re Brill Hardware Co., Inc., 67 N. J. Super. 289 (Cty. Ct. 1961), and Watson v. Rowley, 63 N. J. Eq. 195, 204 (Ch. 1902).

N. J. S. A. 2A:19-3 and 14 must be considered in conjunction with the provisions of N. J. S. A. 46:16-1 and N. J. S. A. 46:22-1. N. J. S. A. 46:16 — 1 permits instruments affecting the title to realty, such as the alleged partnership agreement of 1967, to be recorded in the county recording office of the county wherein the realty is located. N. J. S. A. 46:22-l makes every recordable instrument void as against subsequent judgment creditors without notice if not recorded. Zwaska v. Irwin, 52 N. J. Super. 27, 35-37 (Ch. 1958).

Again, the undisputed proofs showed that the alleged partnership agreement, which supposedly was the basis for the Ross’ deed to Silverstein as trustee, set forth only the year and not the month or day, and was not acknowledged by the parties so it could be recorded as required by N. J. S. A. 46 :16 — 1. The deed to Silverstein as trustee was given without consideration in July 1972 — about six years after the original transaction had occurred.

In our view, the trial judge would have been amply justified to infer from all such proofs that Ross, in executing the deed to Silverstein as trustee, either preferred respondents as creditors in violation of N. J. S. A. 2A:19-3 or that it was part of an illicit agreement between Ross and respondents to preserve some of Ross’ assets for him.

In addition, regardless of all the statutes herein cited and discussed, the trial judge had the inherent equitable power to find from the proofs that appellant, who represents all creditors, was not chargeable with Ross’ machinations. Even if he also concluded that respondents were innocent of any wrongdoing and that appellant failed in his proofs, as between two innocent groups equity will impose the loss on the group whose act first could have prevented the loss. Cambridge Acceptance Corp. v. American Nat. Motor Inns, Inc., 96 N. J. Super. 183, 206 (Ch. 1967), aff’d 102 N. J. Super. 435 (App. Div. 1968), certif. den. 53 N. J. 81 (1968). Another maxim applies, “Equity aids the vigilant, not those who slumber upon their rights.” Lang v. Hexter, 137 N. J. Eq. 100 (Ch. 1945), aff’d o. b. 138 N. J. Eq. 478 (E. & A. 1946). Under the proofs here submitted the trial judge could properly look with suspicion upon the staleness of the Ross’ conveyance to Silver-stein as trustee and respondents’ assertions of their rights. He could reasonably infer that general creditors were misled by the Essex County Register’s record which showed the realty in question to be in Ross’ individual name.

When the trial judge held that appellant failed to prove Ross’ insolvency he predicated it upon the principle .applied in corporation insolvency cases under N. J. S: A. 14A:14AL et seq. —■ namely, the inability of a corporation to meet its pecuniary liabilities as they mature, by means oi either available assets or an honest use of credit. See Sokol v. Fidelity Union Trust Co., 138 N. J. Fq. 429 (E. & A. 1946); Trust Co. v. Trustees of Wm. F. Fisher & Co., 67 N. J. Eq. 602, 604 (E. & A. 1905). But N. J. S. A. 2A:19-3, as previously indicated, does not call for such proofs. The preferred test, in cases like the one at bar, is the one applied under the Fraudulent Conveyance Act, N. J. S. A. 25:2-8, or the Uniform Commercial Code, N. J. S. A. 12A:1-201, or the Federal Bankruptcy Act, 11 U. S. C. A. § 1 (19). Under the latter statutes one is insolvent, generally speaking, when he cannot pay his debts as they become due from the present fair saleable value of his assets. Again, the proofs here met this test on insolvency in the light of Ross’ own sworn assignment, the testimony of his own certified public accountant and respondents’ statement in answer to appellant’s requested admissions that Ross was not insolvent “as trustee.” It was reasonably infer-able that Ross was insolvent, or contemplating it, and was preferring respondents as his creditors.

Finally, we turn to what we believe mandates a reversal, regardless of any other reasons, because the trial judge permitted Ross to invoke his Fifth Amendment privilege against self-incrimination. Evict. B. 24 (N. J. S. A. 2A:84A-18) defines “incrimination” and sets forth when the Fifth Amendment privilege may be invoked by a witness. Whether it is properly invocable is often a difficult and sensitive problem for the trial judge. However, it is crystal clear that the decision must be made by the trial judge, and it is not invocable on the naked statement of the witness that the answer will tend to incriminate him. Hoffman v. United States, 341 U. S. 479, 71 S. Ct. 814, 95 L. Ed. 1118 (1951); In re Addonizio, 53 N. J. 107, 116-117 (1968); In re Boyd, 36 N. J. 285, 286 (1962); In re Boiardo, 34 N. J. 599, 602 (1961); State v. DeCola, 33 N. J. 335, 350 (1960); In re Pillo, 11 N. J. 8, 19 (1952). Furthermore, it is mandatory that the witness, not his counsel, reveal sufficient facts in support of his claim of privilege to enable the trial judge to decide the merits of his claim.

Ross gave no basis for his claim of privilege and the trial judge sought none. We should not have to speculate on what Ross’ answers would have been if compelled to respond to proper questions. He, better than anyone else, was in possession of information which, if believed by the trial judge, could perhaps be dispositive of the issues involved. If it eventuates that his claim of privilege is inquired into by the trial judge and ultimately sustained, then we suggest that the trial judge could properly infer that his answers would be unfavorable to respondents. Costanza v. Costanza, 66 N. J. 63 (1974); Mahne v. Mahne, 66 N. J. 53 (1974).

Por the reasons herein stated, the judgment of dismissal is reversed and the matter remanded for a new trial.

        Transfer of Property Within 4 Months of Assignment to Give Preference Void; Recovery of Property

        If any person being insolvent or in contemplation of insolvency shall, within 4 months before the making of a general assignment, and with the intention of preferring any creditor or person under liability for him, mortgage, pledge, assign, pay or transfer any of his property, or procure or suffer any of his property to be taken, attached or levied upon, or any lien or encumbrance to be acquired thereon by legal process or otherwise, such preferential transaction shall be void as against the assignee. The assignee may recover the property given by way of preference, or the value thereof, from the person so receiving the same or so benefited thereby.


author: Per Curiam.

text:
    RUMSON COUNTRY CLUB, PETITIONER-APPELLANT, v. COMMISSIONER OF COMMUNITY AFFAIRS, STATE OF NEW JERSEY, RESPONDENT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Submitted March 10, 1975
    Decided May 5, 1975.

      Before Judges Michels, Morgan and Milmed.

      Messrs. McCarter & English, attorneys for appellant (Mr. Francis E. P. McCarter, of counsel and on the brief).

      Mr. William F. Hyland, Attorney General of New Jersey, attorney for respondent, (Mr. Paul C. O’Connell, Deputy Attorney General, of counsel and on the brief).
   Per Curiam.

Petitioner Rumson Country Club appeals from a final decision and order of the Commissioner of Community Affairs, State of New Jersey, which adopted the report and recommended decision of the hearing examiner of the Division of Housing and Urban Renewal, Department of Community Affairs, determining that Rumson Country Club was subject to the provisions of the Hotel and Multiple Dwelling Law (N. J. 8. A. 55:13A-1, et seq.), and required it to register the building with the Bureau of Housing Inspection and pay the required registration and inspection fees. The final decision and order also granted a further hearing to Rumson Country Club with respect to the abatement of violations of the “Regulations for Construction and Maintenance of Hotels and Multiple Dwellings” (N. J. A. O. 5:10--1.1 et seq.), promulgated by the Department of Community Affairs pursuant to the law.

The pertinent facts were stipulated by the parties. The building involved is a private club house owned by the “Rumson Country Club.” It was formerly a private home which was converted to a clubhouse with certain additions, principally a men’s locker room and an enclosed porch and dining area. The clubhouse is not open to the public at large and is available only to its members and their guests. The club has a liquor license with all the restrictions inherent to such a limited license.

The first floor of the clubhouse consists of a kitchen, dining room, bar room, men’s locker room and lounge, and extra dining area. The second floor contains a ladies’ locker room, ladies’ room and lounge, and three double bedrooms and private baths. The three double bedrooms are available solely to members or their guests and, in fact are used very little. The third floor is occupied by the club manager and club bartender, who live on the premises for the convenience of the club. The club manager has two bedrooms and two baths and the bartender has a bedroom and bath. There is another bedroom which is not now used for any purpose but which was formerly occupied by another club employee. The third floor living accommodations are for staff use only and under no circumstances are they available for use by members or guests. The bedrooms in the club as they presently exist, except for redecoration and installation of a sprinkler system, have been in the same form as they were when the building was adopted for club purposes in or about 1948,

An inspection of the Rumson Country Club facilities disclosed various violations of the aforementioned regulations, and an inspection report and order of the Commissioner was mailed to Rumson Country Club directing it to abate the violations. Pursuant to N. J. 8. A. 55:13A-18 Rumson Country Club requested and was granted a hearing before the Commissioner of Community Affairs. On the basis of the stipulated facts the hearing examiner rendered his report and recommended decision, which was adopted by the Director of Housing and Urban Renewal and became the final decision and order of the Commissioner.

The Rumson Country Club appeals, contending that (1) the Hotel and Multiple Dwelling Law does not apply to it as it is a private social club; (2) the law is unconstitutional since it does not contain sufficient standards for determining when persons “live independently of each other,” within the meaning of the term “multiple dwelling” as defined in N. J. S. A. 55:13A-3(k), and (3) the regulations promulgated by the Department of Community Affairs are without statutory authority and therefore void. We disagree.

The Hotel and Multiple Dwelling Law has as its declared policy “the protection of the health and welfare of the residents of [Hew Jersey] in order to assure the provision therefor of decent, standard and safe units of dwelling space.” N. J. 8. A. 55:13A-2. The Commissioner is expressly empowered to enter any hotel or multiple dwelling and to make such inspection as is reasonably necessary to carry out the provisions of this act (N. J. 8. A. 55:13A-6), and is expressly empowered to issue an order requiring the owner of the hotel or multiple dwelling to terminate or cause to be terminated any violation thereby discovered (N. J. 8. A. 55:13A-16). The Commissioner is also granted the power to issue an order directing that the hotel or multiple dwelling be vacated, and that the violation b.e corrected within a period specified by the order in the event that the . violation constitutes an imminent hazard to the health, safety or welfare of the occupants thereof. N. J. S. A. 55:33A-17.

The term “multiple dwelling” is defined in the law as follows:

(k) The term “multiple dwelling” shall mean any building or structure of one or more stories and any land appurtenant thereto, and any portion theerof, in which three or more units of dwelling space are occupied, or are intended to be occupied by three or more persons who live independently of each other, provided, that this definition shall not be construed to include any building or structure defined as a hotel in this act, or, registered as a hotel with the Commissioner of Community Affairs as hereinafter provided, or occupied or intended to be occupied exclusively as such. IN. J. 8. A. 55:13A-3(k)]

The term “unit of dwelling space” or “dwelling unit” is defined as follows:

(h) The term “unit of dwelling space” or the term “dwelling unit” shall mean any room or rooms, or suite or apartment thereof, whether furnished or unfurnished, which is occupied, or intended, arranged or designed to be occupied, for sleeping or dwelling purposes by one or more persons, including but not limited to the owner thereof, or any of his servants, agents or employees, and shall include all privileges, services, furnishings, furniture, equipment, facilities and improvements connected with the use or occupancy thereof. [AT. ./. S. A. 55:13A-3 (h) ]

The Rumson Country Club facility is a “multiple dwelling” as the term is defined in N. J. 8. A. 55 :13A-3. See also N. J. A. C. 5:10-2.2. The clubhouse has three or more units of dwelling space which are occupied or intended to be occupied by three or more persons who live independently of each other. The clubhouse does not contain ten ox more units of dwelling space and therefore does not qualify as a “hotel” as that term is defined by N. J. 8. A. 55:13A-3(j) and N. J. A. C. 5:10-2.2.

Rumson Country Club’s argument that the law was designed to apply solely to units of dwelling space in facilities offered for use by the general public and not to private dwelling space, such as a private social club, flies in the face of the Legislature’s declared policy. See N. J. S. A. 55:13A-2. The State’s interest in protecting the health and welfare of its residents by assuring the provision for “decent, standard and safe units of dwelling space” is equally applicable to private as well as public units. Eor example, the failure to provide a second means of egress from a unit of dwelling space (such as the failure to provide fire escapes for apartments on the third floor of the clubhouse) creates an obvious safety hazard for the occupant of the unit, whether it be considered public or private.

Rumson Country Club’s claim that the clubhouse is not “a multiple dwelling” within the meaning of the law because its occupants do not live “independently of each other,” as required by N. J. 8. A. 55:13A-3(k) in that there are no cooking facilities in each unit is equally lacking in merit. When the law became effective on May 31, 1967 the term “multiple dwelling” required not only that the occupants of the units of dwelling space “live independently of each other” but also that they “do their cooking upon the premises.” This latter requirement was deleted from the definition of multiple dwelling by the 1970 amendment to the law. See L. 1970, c. 138, § 2.

While the statute does not prescribe specific criteria by which the phrase “persons who live independently of each other” can be measured, we are satisfied that the Law is not unconstitutionally vague, particularly as applied to the Rumson Country Club. Cf. State v. Moretti, 52 N. J. 182, 192 (1968), cert. den. 393 U. S. 952, 89 S. Ct. 376, 21 L. Ed. 2d 363 .(1968). The findings and conclusions of the hearing examiner that the occupants of the units of dwelling space at the clubhouse do live independently of each other and that the Hotel and Multiple Dwelling Law is therefore applicable to the Rumson Country Club is amply supported by the record. See Mayflower Securities v. Bureau of Securities, 64 N. J. 85, 92-93 (1973); Close v. Kordulak Bros., 44 N. J. 589, 599 (1965); Associated, Utility Services v. Bd. of Review, 131 N. J. Super. 584, 588 (App. Div. 1974).

Finally, we find no merit in the claim that the regulations promulgated by the Commissioner were without statutory authority and therefore void. The Commissioner is expressly granted the power to promulgate the “Regulations for Construction and Maintenance of Hotels and Multiple Dwellings” set forth in N. J. A. C. 5:10-1.1 ei seq., by N. J. S. A. 55:13A-6 (e). The regulations so promulgated were fairly and reasonably necessary and appropriate to make the law effective.

Affirmed.


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. ANNA L. PARNES, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted April 8, 1975
    Decided May 9, 1975.

      Before Judges Carton, Crane and Kole.

      Mr. Milton C. Yarrow, attorney for appellant.

      Mr. Joseph P. Lordi, Essex County Prosecutor, attorney for respondent (Mr. David L. Rhoads, Assistant Prosecutor, of counsel and on the brief).
   Per Curiam.

Defendant was convicted of simple assault and battery upon a juvenile B. D. in the Maplewood Municipal Court. The matter was heard de novo in the Essex County Court because the tape of the municipal court proceedings was inaudible.

Defendant contends that the conviction was against the weight of the evidence and that the trial judge erred in refusing to permit her to examine and use the juvenile court record concerning B. D. relating to the same incident. It is not necessary for ús to consider the argument concerning weight of the evidence since-we .have' concluded that defendant was effectively deprived of her right of confrontation. The trial court was correct in refusing to turn the juvenile records over to defendant’s counsel. However, defendant should have been permitted to examine and use the juvenile’s testimony before the Juvenile Court for purposes of cross-examination. The statutes N. J. 8. A. 2A: 4-64 and N. J. 8. A. 2A :4-65 protect the juvenile only from disclosure of the disposition of the case. B. 5:9-1 (a) and 5:10-6 (b) express a policy of confidentiality but this may not be used to shield the juvenile from the use of his testimony for purposes of cross-examination in another trial relating to the same factual situation. To do so would deprive the defendant of the important right of confrontation. Davis v. Alaska, 415 U. S. 308, 319, 94 S. Ct. 1105, 39 L. Ed. 2d 347 (1974).

The conviction will therefore be reversed and remanded to the Essex County Court for a new trial. Defendant is granted leave to apply to the Essex County Juvenile and Domestic Eelations Court for permission to inspect the record pursuant to the provisions of N. J. 8. A. 2A.-4-65, subd. a(6) and B. 5:10-7(c). Such permission shall be limited to an examination of the testimony of the juvenile B. D. unless that court finds “for good cause shown” that the examination of other portions of the record is warranted.

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