author: Per Curiam.

text:
    ROSE KURMAN, TRADING AS TRI-STATE AUTO BODY, AN UNINCORPORATED PROPRIETORSHIP, PLAINTIFF-APPELLANT v. CITY OF NEWARK AND DEWEY’S GARAGE, INC., DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued April 2, 1973
    Decided May 18, 1973.

      Before Judges Lewis, Carton and Mintz.

      Mr. Robert B. Kroner argued the cause for appellant.

      Mr. W. William Hodes, Assistant Corporation Counsel, argued the cause for respondent City of Newark (Mr. William M. Walls, Corporation Counsel, attorney).

      Messrs. Goldman, Goldman and Caprio filed a statement in lieu of brief for respondent Dewey’s Garage, Inc.
   Per Curiam.

Plaintiff filed a complaint wherein she sought to enjoin defendant City of Newark (Newark) from awarding a towing contract to co-defendant Dewey’s Garage, Inc., asserting that she was the only qualified successful bidder. Newark counterclaimed for moneys owed it from plaintiff on a previous towing agreement.

Newark’s motion for summary judgment dismissing the complaint was granted on the ground that the Local Public Contracts Law, N. J. 8. A. 40A:11-1 ei seq., did not require Newark to publicly bid the contract in question, since it was in effect the granting of a franchise for which Newark receives money. The trial judge ruled that the subject statute applies only when, upon analysis, the transaction actually constitutes a purchase, citing McKim v. South Orange, 133 N. J. L. 470 (Sup. Ct. 1945). Newark’s counterclaim was ordered continued on the active trial list. Plaintiff appeals from the order dismissing her complaint.

The municipal contract in question is one for the removal and storage of abandoned and stolen motor vehicles, those involved in traffic accidents and suspected crimes, and those blocking the streets in a snow emergency. The successful contractor is permitted to tow the subject motor vehicles to his storage location and to make a regulated charge for such service and storage to parties seeking to reclaim vehicles. The contractor is permitted to auction unclaimed vehicles. If the total bill is in excess of the sum realized at the auction sale, the contractor agrees to accept this latter amount in full payment of his bill. He may, of course, bid in the vehicles and endeavor to sell them to scrap dealers or parts dealers at a profit. If the amount realized at the auction is in excess of the total bill, then the contractor is paid in full and the remaining money becomes the property of Newark.

N. J. S. A. 40A:ll-4 provides:

Every contract or agreement, for the performance of any work or the furnishing or hiring of any materials or supplies, the cost or the contract price whereof is to be paid with or out of public funds, not included within the terms of section 3 of this act, shall be made or awarded only after public advertising for bids and bidding therefor, except as is provided otherwise in this act or specifically by any other law. No work, materials or supplies shall be undertaken, acquired or furnished for a sum exceeding in the aggregate $2,500.00 except by contract or agreement.

N. J. S. A. 40A:ll-3 provides that purchases or contracts which do not exceed $2,500 may be awarded without bidding.

Apparently over the years Newark submitted this work to public bidding. In this litigation it takes the opposite position.

The function of removing the aforedescribed automobiles from the streets is a function that Newark could perform at an annual sum considerably in excess of $2,500. In lieu thereof it has elected to contract for this work. Obviously, the contractor who performs this work expects to make a profit, and accordingly bids to obtain the contract. In our judgment McKim v. South Orange, supra, dictates a result contrary to that of the trial court. In McKim the Village of South Orange adopted an ordinance allowing only a licensed scavenger to remove ashes and garbage, and then authorized only one license. The rates which the exclusive licensee was permitted to charge the householder were, as in the instant case, regulated by the municipality. The exclusive licensee paid only $1 for the annual license. The ordinance was invalidated. The court there said at:

The work has been costing the municipality more than $75,000.00 per year; and the cost under the proposed method will be but little, if any, less than that. Certainly the aggregate of such moneys to be paid to and received by the scavenger will greatly exceed the sum of $1,000, which is the cost limit for contracting without public bidding, R. S. 40 :50-l, N. J. S. A., incorporated by reference in R. S. 40 :66-4, supra. Obviously, the village could not contract directly for the doing of the work without calling for bids. The proposed method is, we think, in violation of a public policy, implicit in these and other statutes, that public work exceeding a limited sum shall not be awarded except upon advertisement and io the lowest responsible bidder. The evils attendant upon an award without open bidding are not less under license than under direct contract. Splitting the total cost among the property-users by a system that leaves to them no choice but to incur and pay ihe expense does not alter the fact that in essence an award of public work at a price of many thousands of dollars is being made to a private contractor without competition in bidding. Granted that refuse disposal has a direct bearing upon public health; the legislature has nevertheless declared the above mentioned public policy with respect thereto. [133 N. J. L. at 473]

Newark contends that in McKim the Village of South Orange was properly stopped from paying money indirectly without public bidding. However, in the instant case Newark would receive money. Hence there would he no expenditure of public funds whether Newark or a private contractor performs the work. We do not accept this rationale. The towing and storage of the vehicles is performed under the police power of Newark. If it were to perform the work it would first expend funds before any money would he realized in a reclamation or auction sale. Bather than do the work itself, Newark has elected to contract for the performance of the same, but in such instance McKim mandates public bidding. Simply because Newark by virtue of the proposed contract is passing the charge on to the owner, does not alter the basic fact that the work is being performed for Newark by the contractor.

In Marangi Bros., Inc. v. Board of Commissioners, Ridgewood, 33 N. J. Super. 294, 303 (App. Div. 1954), the court, in upholding the validity of an ordinance authorizing an exclusive license agreement to collect garbage, distinguished McKim, stating:

The impression to be gathered from the Supreme Court is that the basic vice of the South Orange ordinance resided in the absence of competitive bidding. Such bidding is sacrosanct in New Jersey, designed as it is to secure economy in government, avoid favoritism and corruption and protect the lowest responsible bidder.

Statutes calling for public bidding are for the benefit of the taxpayers and not the bidders. They should be construed with sole reference to the public good and rigidly adhered to by the court to guard against favoritism, improvidence, extravagance and corruption. Hillside Tp. v. Sternin, 25 N. J. 317, 322 (1957).

In our judgment the trial court’s narrow construction of N. J. S. A. 40A :ll-4 is unwarranted, and in derogation of the salutory policy requiring competitive public bidding.

Reversed and remanded for further proceedings consistent with this opinion.


source: Caselaw Access Project

license: Public Domain

text:
    EDISON BUFF, INDIVIDUALLY AND TRADING AS J. BUFF & SON, PLAINTIFF-APPELLANT, v. PIETRO GIGLIO, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Submitted April 24, 1973
    Decided May 21, 1973.

      Before Judges Kolovsky, Matthews and Crahay.

      Mr. Herbert New argued the cause for the appellant (Messrs. Brenner, New & Brenner, attorneys).

      Mr. Jerrold B. Goldstein argued the cause for the respondent (Messrs. Goldstein & Toto, attorneys).
   Per Curiam.

In this contract action plaintiff appeals from a judgment for defendant entered on a jury verdict in the County District Court and from the denial of his motion for a judgment n.o.v. (B. 4:40-2).

Plaintiff, a steam pressing appliance dealer, instituted this action demanding $1,650 which represented the unpaid balance on two contracts for the sale of used and rebuilt machinery to defendant, a custom tailor. The form complaint contained the four counts usually found in District Court actions of this type i. e. 1) book account; 2) goods sold and delivered; 3) reasonable value of goods sold and delivered; and 4) account stated. (A fifth count was added seeking the recovery of $300 on a check issued to plaintiff by defendant which was not paid because of insufficient funds.)

Defendant, in his answer, generally denied the allegations of the complaint and asserted five separate defenses — 1) Statute of Frauds; 2) lack of consideration; 3) breach of express and implied warranties of merchantibility; 4) that the services rendered by the plaintiff in connection with the sale of the goods was not performed in a workmanlike manner; and 5) breach of contract. Defendant in two counts counterclaimed for damages, essentially urging breach of express and implied warranties of merchantibility.

The factual background of the dispute was that in December 1969 plaintiff sold to defendant a pressing machine, boiler, iron and condensation unit for an agreed price of $1,900. In February 1970 plaintiff sold to and installed for defendant a sleeve-blocking machine for an agreed price of $500. Defendant made a payment on the contract in October 1970 of $400 and a second payment in February 1971 of $400. In June of 1971, approximately eighteen months after the first transaction, a third payment of $300 was tendered by check but it was not honored because of insufficient funds, whereupon plaintiff filed his complaint.

Plaintiff testified that he made normal maintenance calls during the first year the equipment was installed in defendant’s shop and that there were no claims that the equipment was not functioning with the exception of a specific complaint and problem relating to a malfunctioning pilot light in the boiler. Defendant on the other hand testified that he had constant trouble with the equipment and that it only worked for a few days over the two-year period generating constant calls by him to plaintiff’s office to complain. Without specifying dates, defendant testified that he offered to return the machine a few times when he “was tired” of it.

A defense witness, Dartley, who for many years had operated a cleaning establishment and who had done pressing work for defendant opined that the rebuilt equipment was totally inadequate — that the pressing machine was bulky and probably more than twenty years old. He further testified that defendant was required to have him assist in his pressing work and that for a time Dartley’s bill to defendant was between $7.50 and $10 per week.

At the close of the proofs, the Court granted plaintiff’s motion to dismiss the counterclaim but permitted the jury to consider as a defense to plaintiff’s action for the unpaid balance, defendant’s affirmative defense of breach of warranty.

In its instructions to the jury the court gave them the option of an “all or nothing” choice of verdicts, advising them that if they found the plaintiff had preponderated, he would be entitled to “one lump sum” and that on the other hand if they found that the plaintiff had not “provided a preponderance of legal evidence” they were to return a verdict fox the defendant of “no cause for action.” The jurors during deliberations asked for a clarification as to what rule would be applicable if they voted “no cause for action” or if they voted for the plaintiff. The court in response to the question instructed them that they would return a verdict for the plaintiff for the total amount due of $1,650, or if on the other hand they found “no cause for action”, the plaintiff would not be entitled to “any funds”.

We are satisfied that the trial court committed error in the manner in which it structured the causes of action and articulated them to the jury.

The record clearly supports plaintiff’s contention that defendant did not reject the goods involved nor effectively cancel the contract and accordingly is liable to plaintiff for the unpaid balance of the contract price. However, rejection is not a prerequisite to an action by a buyer for damages for breach of warranty. All that is required where goods have been accepted, see N. J. S. A. 12A:2-714, is notification to t)ae seller “within a reasonable time after [the buyer] discovers or should have discovered [the breach].” N. J. S. A. 12A:2-607(3) (a). Here the evidence was sufficient to support a finding that such notification had been given.

The transactions between the parties here were governed by the Uniform Commercial Code, the pertinent portions being —

N. J. S. A. 12A :2-602. Manner and Effect of Rightful Rejection.
(1) Rejection of goods must be within a reasonable time after their delivery or tender. It is ineffective unless the buyer seasonably notifies the seller
(3) The seller’s rights with respect to goods wrongfully rejected are governed by the provisions of this Chapter on Seller’s remedies in general (12A:2-703),
N. J. S. A. 12A:2-606. What Constitutes Acceptance of Goods
(1) Acceptance of goods occurs when the buyer
(a) after a reasonable opportunity to inspect the goods signifies to the seller that the goods are conforming or that he will take or retain them in spite of their non-conformity; or
(b) fails to make an effective rejection [subsection (1) of 12A :2-602] but such acceptance does not occur until the buyer has had a reasonable opportunity to inspect them, or
(c) does any act inconsistent with the seller’s ownership; but if such act is wrongful as against the seller it is acceptance only if ratified by him.
(2) Acceptance of a part of any commercial unit is acceptance of that entire unit.
N. J. S. A. 12A :2-607. Effect of Acceptance; . . .
(1) The buyer must pay at the contract rate for any goods accepted.
(3) Where a tender has been accepted
(a) the buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller of breach or be barred from any remedy: . . .
N. J. S. A. 12A:2-703. Seller’s Remedies in General.
Where the buyer wrongfully rejects or revokes acceptance of goods or fails to make a payment due on or before delivery or repudiates with respect to a part or the whole, then with respect to any goods directly affected and, if the breach is of the whole contract (12A :2-612), then also with respect to the whole undelivered balance, the aggrieved seller may
(e) recover damages for non-acceptance (12A :2-70S) or in a proper case the price (12A :2-709) ;
A. J. S. A. 12A:2-709. Action for the Price
(1) When the buyer fails to pay the price as it becomes due the seller may recover . . . the price,
A. J. 8. A. 12A-.2-711. Buyer’s Damages for Breach in Regard to Accepted Goods.
(2) The measure of damages for breach of warranty is the difference at the time and place of acceptance between the valne of the goods accepted and the valne they would have had if they had been as warranted, unless special circumstances show proximate damages of a different amount . . .

On the record here and the operative provisions of the Uniform Commercial Code the court, having properly held that there was acceptance of the goods by the defendant-buyer and conversely no effective revocation of that acceptance, should have held defendant liable for the balance of the purchase price as a matter of law. No factual issues were generated on the issue of reasonable value and consideration. Significantly, the counterclaim in its two counts does not seek recission or cancellation of the contract hut rather money damages on the basis of breach of warranty. Cf. Hydride v. Mehlman's, Inc., 253 S. C. 652, 172 S. E. 2d 824 (1970); Annot., 17 A. L. R. 3d 1010, 1085 (1968).

Defendant-buyer’s remedy is found in N. J. 8. A. 12A :2~ 715 i. e. for specific damages flowing from breach of warranty, Henningsen v. Bloomfield Motors, Inc., 32 N. J. 358 (1960); Rudolph v. Huckman, 267 A. 2d 896 (Del. Super. 1970), and the issues raised by the counterclaim should have been presented to the jury for resolution.

Our determination that plaintiff had made out a case for recovery of the balance of the purchase price does not call for the entry of judgment in his favor for that amount. Since the trial court erred in striking defendant’s counterclaim for damages for breach of contract, there will have to be a new trial on the issues raised by the counterclaim.

Accordingly, the judgment is reversed and the cause remanded to the trial court for a new trial consistent with this opinion.

Reversed.


author: McKenzie, J. C. C.,

text:
    ANNE BILOWIT, FALSELY KNOWN AS ANN DOLITSKY, PLAINTIFF, v. MICHAEL DOLITSKY, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided May 2, 1973.

      Mr. Louis Forman attorney for plaintiff.
   McKenzie, J. C. C.,

Temporarily Assigned. On the representation of defendant that he was a practicing Orthodox Jew, plaintiff married him on January 23, 1971. Thereafter plaintiff discovered that defendant did not in fact adhere to the tenets of Orthodox Judaism and had misrepresented his religious connections to plaintiff because he was in love with her, wished to marry her, and was aware that she would not marry him otherwise. The marriage was admittedly consummated. Plaintiff seeks an annulment, and her cause of action is not contested.

Our courts have long required a more substantial quantum of fraud to entitle a party to an annulment where the marriage has been consummated than where it has not. Any kind of fraud which would render a contract voidable may be the basis for the annulment of a marriage similarly infected. Ysern v. Horter, 91 N. J. Eq. 189 (Ch. 1920); Caruso v. Caruso, 104 N. J. Eq. 588 (Ch. 1929).

Where the marriage has been consummated, the fraud of defendant will entitle plaintiff to an annulment only when the fraud is of an extreme nature, going to one of the essentials of marriage. Akrep v. Akrep, 1 N. J. 268 (1949); Costello v. Porzelt, 116 N. J. Super. 380 (Ch. Div. 1,971); Pisciolia v. Buccino, 22 N. J. Super. 114 (App. Div. 1952). The language is now embodied in N. J. S. 2A:34-1 (d).

As to what constitutes the “essentials” of the marriage relation, it has been observed that the guidelines are vague and not fully delineated by our decisional law. Costello v. Porzelt, supra, 116 N. J. Super. at 383-385. This is as it should be. What is essential to the relationship of the parties in one marriage may be of considerably less significance in another. Eor this reason a determination of whether a fraud goes to the essentials of the marriage must rest upon the facts in each ease. Ysern v. Horter, supra.

Here plaintiff, corroborated by her rabbi, testified that she has been a deeply religious Orthodox Jew throughout her life. Her beliefs wore made known to defendant and he, representing himself to be an Orthodox Jew, agreed to follow the requirements of that religion. As testified to by the rabbi, they are many and far-reaching, touching virtually all aspects of everyday life. Although for a few weeks following the marriage defendant adhered to them, it soon became apparent that he was not in fact an Orthodox Jew, and never sincerely intended to follow that religion. Plaintiff promptly separated from him.

The reported cases on this subject are meager. In both Akrep v. Akrep, 1 N. J. 268 (1949), and Nocenti v. Ruberti, 17 N. J. Misc. 21 (Ch. 1933), our courts granted annulments where the defendant misrepresented his intention to etrter into a religious ceremony of marriage following the civil ceremony. However, in both cases the marriage was not consummated.

Numerous cases in New York indicate that annulments have been granted under circumstances similar to those in the instant ease. See for example, Williams v. Williams, 194 Misc. 201, 86 N. Y. S. 2d 490 (Sup. Ct. 1947). Cf. Taylor v. Taylor, 181 Misc. 306, 47 N. Y. S. 2d 401 (Sup. Ct. 1943). This court is aware, however, that these decisions were reported during the period preceding the reform of the New York divorce law, and this court is satisfied that under the circumstances they should not be given great weight here at this time. See Note “Annulments for Fraud —New York’s Answer to Reno ?” 48 Columbia L. Rev. 900 (1948).

Although our courts have fixed the amount of fraud required to entitle one to an annulment where the marriage has been consummated, we have nevertheless long viewed as expandable any list of the types of fraudulent conduct for which relief may be afforded:

There ought always to be an indisposition in every court to weaken the force and sacredness of the marriage tie. That consideration should induce great carefulness, but should not deter us from advancing where principle leads us, although before, in our courts, the objective point has not been attained. The fraud in this case was so gross and far-reaching, as to avoid the consent, and for that reason the marriage must be declared null and void, ab initio. [Carris v. Carris, 24 N. J. Eq. 516, 526 (E. & A. 1873) ]

See also, Costello v. Porzelt, supra.

So it is in the instant case. To plaintiff the religious beliefs and convictions of her husband were essential to her marriage. She could not have properly performed the duties of a wife and mother, following the rules and teachings of her faith, without the support of a husband holding the same beliefs. Defendant, having substantially and knowingly misrepresented the same to her, and plaintiff having relied thereon in entering into the marriage, this court holds the fraud to which plaintiff was subjected to be “gross and far-reaching,” within the meaning of Carris. In accord: State Compensation Fund v. Foughty, 13 Ariz. App. 381, 476 P. 2d 902 (Ct. App. 1970).

That a subjective test may render more difficult the fact-finding process of the court should not prevent a litigant from obtaining relief where justice dictates. Our requirement that the fraud alleged must be proved by clear and convincing evidence should be noted. See Williams v. Witt, 98 N. J. Super. 1 (App. Div. 1961); Pisciotta v. Buccino, supra.

A judgment for annulment of the marriage will be entered.


author: Bischoff, J. S. C.

text:
    ALLSTATE INSURANCE COMPANY, PLAINTIFF, v. FRANCIS P. McHUGH, JR., DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided May 2, 1973.

      Mr. William A. Garrigle for plaintiff (Messrs. Casby & Garrigle, attorneys).

      Mr. Kelly T. Young for defendant (Messrs. McGuire, Green & Young, attorneys).
   Bischoff, J. S. C.

This is a declaratory judgment action in -which plaintiff Allstate Insurance Company (hereinafter Allstate) seeks a declaration of the limits of its liability under an uninsured motorist endorsement.

The facts are as follows:

On August 17, 1970 Frank McHugh was injured in an automobile accident with an uninsured motorist while operating a motor vehicle insured by Allstate under their Allstate “Crusader Policy/' which policy was issued to his wife, Clare Q. McHugh. The policy covered a 1968 Ford Falcon and a 1966 Volkswagen. Two declaration sheets were issued by Allstate, both bearing the same policy number. One sheet bears on its face “ITEM 1 68 FALCON.” The second sheet bears on its face “ITEM 2 66 VOLKSWAGEN.” Both declaration sheets provide uninsured motorist coverage for bodily injury for $10,000 for each person and $20,000 for each accident. Separate premiums of $5 were paid for the uninsured motorist coverage (Coverage S).

The policy of insurance and Coverage S included therein conformed to N. J. 8. A. 17:28-1.1.

It has been conceded for purposes of this proceeding that the injuries sustained by McHugh will justify an award in excess of $10,000.

McHugh contends that since separate but equal premiums were paid for Coverage S (uninsured motorist coverage) for each automobile in the same amount of $5, double coverage should be afforded to the insured, thereby making $20,000 rather than $10,000 the policy limit. He further argues that this type of insurance follows the individual rather than the vehicle and, therefore, if a premium is colleeted for separate cars, the insureds under the policy are entitled to double coverage.

There is, however, increased risk incurred by the carrier when insuring separate motor vehicles under Coverage S. It is true that the named assured is covered under Coverage S regardless of the circumstances under which he is injured by an uninsured motorist. He has this coverage whether one, two or more vehicles are covered. Coverage S extends not only to the individual assured but also extends coverage to the vehicle under this situation.

Coverage S provides “the company will pay all sums which the insured shall be legally entitled to recover as damages from the owner or operator of an uninsured vehicle * * *.”

Persons insured are defined as “(b) any person while occupying an insured highway vehicle.”

It is conceivable that Prank McHugh could be operating one vehicle with multiple passengers therein, his wife operating the second vehicle with multiple passengers therein. All the passengers in both vehicles are covered under Coverage S. This increased risk provides sufficient consideration and justification for charging a separate premium at the same rate for additional cars on the same policy.

In Castle v. United Pacific Insurance Group, 252 Or. 44, 448 P. 2d 357 (Sup. Ct. 1968), the court stated, when faced with the argument that payment of double premiums affords double coverage, that “the premium paid and the coverage extended to each of the two automobiles was simply to provide this form of coverage for each of the insured vehicles.” (Emphasis added).

McHugh further contends that there were two separate policies of insurance issued in this case. The argument is based upon the testimony which indicates two separate declaration sheets were issued, bearing, however, one and the same policy number. Only one policy was issued to which the two declaration sheets were attached. Bearing in mind the fact that only one policy number is used it is difficult to follow the argument that two separate policies are involved. The argument that the issuance of two separate declaration sheets constitutes two separate policies was raised in Polland v. Allstate Ins. Co., 25 App. Div. 2d 16, 266 N. Y. S. 2d 286 (App. Div. 1966), where the court said:

We are constrained to disagree with appellant’s contention that defendant’s policy with the two attached supplemental sheets constitutes in law two policies, one covering each of the insured cars, and affords Thomas Haynes coverage in the sum of $20,000. The original “Crusader Policy” and the two endorsements formed one contract and each person injured is limited to $10,000. [266 N. Y. S. 2d at 287]

See also, Otto v. Allstate, Ins. Co., 2 Ill. App. 3d 58, 275 N. E. 2d 766 (App. Ct. 1971).

This court agrees with the reasoning of the Polland case and accordingly holds only one policy was issued.

McHugh, further relying upon the doctrine that ambiguities are to be resolved in favor of the insured, points to two clauses in the policy which he contends are in conflict. The first appears on page 3 of the policy under the heading “Limits of Allstate’s Liability,” which provides, “the limit of bodily injury liability stated on the supplemental page for Coverage A” as applicable to:

1. “each person” is the limit of Allstate’s liability for all damages arising out of bodily injury sustained by any one person in any one occurrence; 9 *

The alleged conflict clause appears on page 16 and is contained in the section of the policy entitled “Conditions,” paragraph 3:

When two or more automobiles are insured by this policy, the terms of this policy shall apply separately to each, 9 9 *.

This same alleged ambiguity was dealt with in the following cases. Allstate Ins. Co. v. Schmitka, 12 Cal. App. 3d 59, 90 Cal. Reptr. 399 (D. Ct. App. 1970); Polland v. Allstate Ins. Co., supra; Pacific Indemnity Co. v. Thompson, 56 Wash. 2d 715, 355 P. 2d 12 (Sup. Ct. 1960); Allstate Ins. Co. v. Mole, 414 F. 2d 204 (5 Cir. 1969); Otto v. Allstate Ins. Co., supra. In each case this argument was rejected. The court in Polland had the following to say about the ambiguity raised by McHugh:

We find nothing uncertain or ambiguous in the provisions of the policy. In our view Condition “3” which provides that “when two or more automobiles are insured by this policy, the terms of this policy shall apply separately to each * * means nothing more than to render applicable the policy to whichever car insured undér the policy (The Thunderbird or the Volkswagen) is involved in an accident. [266 N. 7. S. 2d at 287]

When interpreting insurance policies it is settled law that ambiguities are to be resolved in favor of the insured. Hanover Insurance Group v. Cameron, 122 N. J. Super. 51 (Ch. Div. 1973); Bryan Const. Co., Inc. v. Employers Surplus Lines Ins. Co., 60 N. J. 375, 377 (1972); Bauman v. Royal Indem. Co., 36 N. J. 12 (1960). "And where the language of the policy is capable of two reasonable interpretations, the court will adopt that which permits recovery rather than the one which would deny coverage.” State Farm Mut. Auto. Ins. Co. v. Cocuzza, 91 N. J. Super. 60, 63. However, "the court will not make a new agreement for the parties, and exceptions, exclusions, and reservations in a policy which are not inconsistent with public policy will be construed in accordance with their language and the usual rules governing the construction of insurance contracts.” Cocuzza, supra, 91 N. J. Super. at 63.

The uninsured motorist coverage in McHugh’s policy was offered to him by legislative mandate. N. J. S. A. 17:28-l.l provides as follows:

No automobile liability policy or renewal of suck policy, of insurance insuring against loss resulting from liability imposed by law for bodily injury or death, sustained by any person arising out of the ownership, maintenance or use of a motor vehicle shall be delivered or issued for delivery in this State with respect to any motor vehicle registered or principally garaged in this State unless coverage is offered in connection therewith, in limits for bodily injury or death set forth in section Í) of chapter 114 of the laws of 1952 ( O. 39:6-69), * * *. [Emphasis added]

N. J. 8. A. 39:6-69 provides for application to the Unsatisfied Claim and Judgment Fund for payment of a judgment in the maximum amount of $10,000 for injury or death to one person in one accident or $20,000 for injury or death to more than one person in one accident. The section also provides that the Fund shall be liable for an amount which does not exceed the aforementioned limits. The limits in that statute are a guide for insurance companies who issue policies in our State and must now offer uninsured motorist coverage. They write their policies in reliance upon and in accordance with the public policy stated in N. J. 8. A. 17:28-1.1 and 39:6-69.

The policy issued to McHugh by Allstate conforms to the public policy of our State as it is expressed in the statutes cited. I do not hold that there is any prohibition against an insurance company providing for greater limits of liability under Coverage S than those stated in the statutes. However, in light of the wording of N. J. 8. A. 17:28-1.1 and the fact that the form of the uninsured motorist endorsement was approved by the Commissioner of Insurance (Obst v. State Farm Mut. Auto. Ins., 123 N. J. Super. 60 (Ch. Div. 1973)), any increase in the limits of liability should be expressed in the policy and not imposed upon an insurance company by a tortured construction of either the policy or the statute.

T cannot make a new agreement for the parties but must enforce the insurance agreement as I interpret it.

McHugh's final contention is that the holding o£ McFarland v. Motor Club of America Ins. Co., 120 N. J. Super. 554 (Ch. Div. 1972), is dispositive of the issue now before the court.

The McFarland case dealt specifically with two separate policies on two separate cars and involved the “other insurance” clause of one policy. The facts of McFarland were that Yander McFarland was a passenger in a vehicle owned and operated by Andrew McFarland, which vehicle was involved in a collision with an uninsured vehicle. Andrew McFarland was insured by Allstate Insurance Company under a policy which provided for uninsured motorist protection to Yander McFarland. Allstate paid Yander the $10,000 policy limit. Yander carried a policy with defendant which provided uninsured motorist protection. Yander asserted a claim against defendant for whatever amount up to $10,000 his total damages exceeded the policy limit paid to him by Allstate ($10,000). Defendant’s policy contained a clause which provided that the insurance coverage under its uninsured motorist protection should only apply as excess insurance over any other similar insurance available to the insured while the insured was occupying a vehicle not owned by him.

The court there held that the case was analogous to cases which have dealt with attempts by insurance companies to restrict omnibus coverage required by N. J. 8. A. 39:6-46 (a). The issue of “other insurance” clauses has not been raised in this case and is not involved.

The court in McFarland relied on Safeco Ins. Co. of America v. Jones, 286 Ala. 606, 243 So. 2d 736 (Sup. Ct. 1970), which was also a case involving an “other insurance” clause. The policy behind voiding “other insurance clauses” is to prevent insurance companies from avoiding their statutorily imposed liability with a clause that they drafted which would subvert public policy. McFarland, supra. Here, Allstate admits that it is obligated to pay $10,000, which is the policy limit and what New Jersey law requires. Allstate is not attempting to go below what it is required by law to put into its policies.

Judge Francis concluded in the McFarland case:

* * * Where an insured’s loss exceeds the limits of one policy, he map proceed against other available policies. The insurance company is, of course, free to dispute the validity of the asserted claim. But this court will not permit an insurer to escape its statutorily imposed liability by including in its policy a limiting clause which prevents the insured from receiving coverage, he has paid for. Insofar as the “other insurance” clause under consideration purports to do so, it is violative of public policy and is invalid. [120 N. J. Super. at 563; Emphasis added]

Here, McHugh alleges that his losses exceed the limits of his policy; however, it has already been decided that the two declaration sheets issued by Allstate do not constitute two policies but only one. Therefore, there are no “other available policies” against which McHugh may proceed.

Some jurisdictions have permitted “stacking” or “pyramiding” of uninsured motorist coverage under circumstances analogous to those now before the court. See Lipscombe v. Security Ins. Co. of Hartford, 213 Va. 81, 189 S. E. 2d 320 (Sup. Jud. Ct. 1972); Cunningham, v. Insurance Co. of North America, 213 Va. 72 189 S. E. 2d 832 (Sup. Jud. Ct. 1972) ; Sturdy v. Allied, 203 Kan. 783, 457 P. 2d 34 (Sup. Ct. 1969); Rosson v. Allied Mutual Ins. Co., 203 Kan. 795, 457 P. 2d 42 (Sup. Ct. 1969).

However, other jurisdictions under similar circumstances have denied “stacking” or “pyramiding” of coverage. See Allstate Ins. Co. v. Schmitka, supra; Castle v. United Pacific Insurance Group, supra; Arminski v. United States Fidelity, 23 Mich. App. 352, 178 N. W. 2d 497 (App. Ct. 1970); Polland v. Allstate Ins. Co., supra; Pacific Indemnity Co. v. Thompson, supra; Martin v. Christiansen, 22 Utah 2d 415, 454 P. 2d 294 (Sup. Ct. 1969); Kennedy v. American Hardware Mutual Ins. Co., 255 Or. 425, 467 P. 2d 963 (Sup. Ct. 1970); Otto v. Allstate Ins. Co., supra.

I find that the eases which have denied “stacking” or “pyramiding” of coverage represent the better and more reasoned view and adopt it.

I accordingly conclude that plaintiff issued but one policy of insurance ; that there is no ambiguity in the policy statements respecting uninsured motorist coverage under the circumstances with which we are here concerned, and that the limit of liability of plaintiff Allstate in this case is $10,000.


author: Belopolsky, J. C. C.

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. JAMES J. CARR, III, DEFENDANT.
    Superior Court of New Jersey Law Division (Criminal)
    Decided April 6, 1973.

      Mr. John Lee Madden, First Asst. Prosecutor for plaintiff (Mr. Dominick J. Ferrelli, Prosecutor of Burlington County, attorney).

      Mr. Jun M. Schlesinger for the defendant {Messrs. Hartr man, Schlesinger, Schlosser & Faxon, a professional corporation, attorneys).
   Belopolsky, J. C. C.

This is a motion, brought by the State, to compel defendant to submit a handwriting exemplar in connection with his prosecution for armed robbery, after defendant refused to submit one voluntarily.

The facts are that an armed robbery was committed, during the course of which a note was handed to the victim with the following words handprinted thereon: “THIS IS A HOLD UP, PUT ALL MONEY IN PAPER BAG.” A subsequent investigation resulted in the arrest and charging of four subjects, one of whom is defendant. The State alleges that its investigations indicate that defendant is the person who presented the holdup note. • The requested specimen is sought so that it may be compared with the holdup note in an effort to ascertain who prepared it.

In support of its motion the State relies on N. J. S. A. 2A:84A-19(a) which establishes exceptions to the general privilege against self-incrimination. The defense argues that while the State may have a right to obtain a sample of the defendant’s handwriting executed prior to the alleged crime through the discovery process, R. 3 :13, there is no authority to compel him presently to execute a sample, because to do so would violate his privilege against self-incrimination.

There is no need to explore the background of the privilege against self-incrimination except to say that it is firmly rooted in the State’s common law, State v. DeCola, 33 N. J. 335 (1960); In re Pillo, 11 N. J. 8 (1952); its statutory enactments, N. J. S. A. 2A:84A-19; Evidence Rule 25, and the extension of the Fifth Amendment protections to- the states, Malloy v. Hogan, 378 U. S. 1, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964).

The privilege, however, does not confer upon the accused an absolute right to refuse any and all cooperation with the judicial process. It is only, to quote Mr. Justice Holmes, “a prohibition of the use of physical or moral compulsion to extort communications from him, not an exclusion of his body as evidence when it may be material.” Holt v. United States, 218 U. S. 245, 252-253, 31 S. Ct. 2, 6, 54 L. Ed. 1021, 1030 (1910)

The New Jersey statute granting the privilege against self-incrimination also contains this clear exception:

[N]o person has the privilege to refuse to submit to examination for the purpose of discovering or recording his corporal features and other identifying characteristics * *. [37. J. S. A. 2A:84A-19(a) ; Evidence Rule 25(a)]

The United States Supreme Court has delineated the extent of the Fifth Amendment’s privilege. The court in Schmerber v. California, 384 U. S. 757, 763—764, 86 S. Ct. 1826, 1833, 16 L. Ed. 2d 908, 913 (1966), held that:

tlie privilege protects an accused only from being compelled to testify against himself, or otherwise provide the State with evidence of a testimonial or communicative nature. * * *

New Jersey courts have considered a wide range of subjects in interpreting exceptions to the privilege, but they have never dealt specifically with the question of handwriting exemplars. In State v. King, 44 N. J. 346, 357 (1965), the Supreme Court held that examinations or inspections which are “non-testimonial in character” are beyond the scope of the privilege. This “non-testimonial” standard has shaped the limits of what constitutes “corporal features” and “identifying characteristics” under the statutory exception to the privilege. Now a person may be compelled to perform a number of acts or submit to several physical tests, including speaking for a witness, State v. King, supra, and submitting to a voiceprint, State v. Cary, 49 N. J. 343 (1967).

The rationale for these exceptions is that they are merely tests of physical properties and do not require the person to vouch for the veracity of anything. State v. Cary, supra, at 348.

It is clear that a person may be compelled to do certain acts which are considered exceptions to the privilege against self-incrimination. These exceptions are directed toward evidence which is generally termed “physical” or “non-testimonial” in character. The question before the court is whether a handwriting exemplar is a form of excepted evidence and as such may be compelled under the exceptions to the privilege.

The United States Supreme Court, in an opinion by Justice Brennan, has considered the nature of handwriting and has upheld the constitutionality of a compelled handwriting exemplar, Gilbert v. California, 388 U. S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178 (1967). Defendant there was arrested by E. B. I. agents and questioned about several robberies where handwritten demand notes were employed. During the interrogation he executed handwriting exemplars, which were subsequently admitted into evidence at his trial, where he was convicted of armed robbery and murder.

The court held, among other things, that the taking of the exemplars did not violate defendant’s privilege against self-incrimination :

The privilege [against self-incrimination] reaches only compulsions of “an accused’s communications, whatever form they might take . . and not “compulsion which makes a suspect or accused the source of real or physical evidence . . .” One’s voice and handwriting are, of course, means of communication. It by no means follows, however, that every compulsion of an accused to use his voice or write compels a communication within the privilege. A mere handwriting exemplar, in contrast to the content of what is written, like the voice or body itself, is an identifying physical characteristic outside its protection. [Emphasis supplied]

The State’s request to compel a handwriting exemplar here is permissible under both the statutory and common law exceptions to the privilege against self-incrimination. A compelled exemplar would not only conform to the holding in Gilbert but would also meet the “non-testimonial” standard, established in King, and consequently such an exemplar is an identifying characteristic and may be compelled pursuant to N. J. S. A. 2A:84A-19(a).

The form of the requested sample is proper because it seeks to elicit no information from defendant, nor does it aim to test his veracity or grammatical ability. It merely requests him to copy the wording of the sentence used on the holdup note in his own handwriting.

Dor the reasons expressed, the State’s motion to compel defendant to submit a handwriting exemplar is allowed.

      See also Wigmore’s view, 8 Wigmore, Evidence (McNaughten rev. (1961), § 2263.

      For a list of federal cases and eases from other states on the subject of handwriting exemplars, see 3 Wharton, Criminal Evidence § 624, fn. 14; and 8 Wigmore, Evidence (MeNaughten rev. 1961), § 2265, fn. 10.

      See New Jersey Rules of Evidence (ann. ed. 1972), § 25(a) (1), for a complete list of excepted identifying characteristics.


author: Rizzi, A. J. S. C.

text:
    PATROLMEN'S BENEVOLENT ASSOCIATION, LOCAL #208, PLAINTIFF, v. CAMDEN COUNTY BOARD OF CHOSEN FREEHOLDERS AND ARNOLD CREAM, SHERIFF OF CAMDEN COUNTY, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided April 11, 1973.

      Mr. Robert F. O'Brien for plaintiff (Messrs. Tomar, Parks, Seliger, Simonoff & Adourian, attorneys).

      Mr. Joseph I. McCullough, Jr. for defendants (Louis C. Portella, attorney).
   Rizzi, A. J. S. C.

The issue in this in lieu proceeding involves the validity of a resolution adopted by the Camden County Board of Freeholders changing the titles of court attendants, ID officers and process officers, all employees of the county sheriff, to a single title of sheriff’s officer.

Plaintiff Patrolmen’s Benevolent Association, Local #208, is a union which was in 1972 the exclusive bargaining representative of the court attendants and process officers in the employ of the Sheriff of Camden County.

On September 7, 1972 the board of freeholders adopted the resolution in question which, insofar as pertinent, reads:

B(' it * * resolved that the titles of Court Attendant, I. D. Officer, and Process Officer, be and [they] are hereby changed to Sheriffs Officer.

Plaintiff asserts that this change in classification is violative of N. J. 8. A. 34:13A — 1 et seq. in that the employer, Camden County Board of Freeholders, did not negotiate in good faith with the employees, court attendants and process officers before changing their job titles, as required by N. J. S. A. 34:13A-5.3. Plaintiff seeks an injunction restraining defendants from carrying the resolution into effect. Defendants contend that no injunction should be granted but that plaintiff is barred from relief in the courts because it should have filed a petition with the Public Employment Relations Commission (PERC).

N. J. 8. A. 34:13A-1 is entitled the “Hew Jersey Employer-Employee Relations Act.” Section 5.2 of the act establishes a Public Employment Relations Commission (PERO). N. J. 8. A. 34:13A-5.2(a). N. J. 8. A. 34: 13A-5.2(b) provides that

This commission shall make policy and establish rules and regulations concerning employer-employee relations in public employment relating to dispute settlement, grievance procedures and administration including enforcement of statutory provisions concerning representative elections and related matters.

N. J. 8. A. 34:13A-5.3 recognizes the right of employees to form and join any employee organization, and the right of members of these employee organizations to elect, by a majority vote, exclusive representatives for collective negotiation concerning the terms and conditions of employment. A pertinent part of section 5.3 provides that

Proposed new rules or modifications of existing rules governing working conditions shall, be negotiated with the majority representative before they are established. In addition, the majority representative and designated representatives of the public employer shall meet at reasonable times and negotiate in good faith with respect to grievances and terms and conditions of employment.

Finally, N. J. 8. A. 34:13A-6(b) provides that

Whenever negotiations between a public employer and an exclusive representative concerning the terms and conditions of employment shall reach an impasse, the commission, through the Division of Public Employment Relations shall, upon the request of either party, take such steps as it may deem expedient to effect a voluntary resolution of the impasse. In the event of a failure to resolve the impasse by mediation the Division of Public Employment Relations is empowered to recommend or invoke fact-finding with recommendation for settlement, the cost of which shall be borne by the parties equally.

Turning, now, to defendants’ contention that plaintiff’s exclusive remedy is by filing a petition with PEEC, it would seem that the provisions of N. J. 8. A. 34:13A-6(b) are clear. There must be an impasse in the negotiations and a request from either party before PEEC will intervene in the dispute. Additionally, it was held in Burlington County Evergreen Park Mental Hospital v. Cooper, 56 N. J. 579 (1970), that PEEC does not have the authority to hear and decide unfair labor practice charges, or to issue any type of affirmative remedial orders with respect to such charges. The Supreme Court noted that the provisions of N. J. S. A. 34:13A-5.2 (b) and 34:13A-6(b) were intended only to bring about a voluntary settlement of labor disputes, and that if violations of statutory rights are involved and affirmative remedies sought, the employee may seek a remedy in the courts. Id., at 594.

Thus, it would appear that this matter is properly before the court and defendants’ contention that PEEC has exclusive jurisdiction is without merit.

With the jurisdictional issue resolved, the court turns to the central issue: Have defendants, by changing the job titles of court attendants and process officers, without prior good faith negotiations, violated the provisions of N. J. 8. A. 34:13A — 5.3 ?

As discussed earlier, N. J. 8. A. 34:13A — 5.3 requires employers to negotiate in good faith with their employees any new rules or modifications governing existing working conditions. It is the defendants’ contention that although there were no formal negotiations concerning these changes, they did talk informally with PBA officials and this should be sufficient to satisfy the statute.

While there is no New Jersey case law on this point, our Supreme Court has recognized that the Hational Labor Eelations Act, 29 U. 8. O. A. § 157, was probably accepted as a guide for the administration of the New Jersey Employer-Employee Relations Act. Lullo v. International Ass’n. of Fire Fighters Local 1066, 55 N. J. 409, 424 (1970). Thus, it seems entirely reasonable to turn to decisions of the NLRB for guidance and direction.

It has been held that the crucial question of whether a party has met his statutory duty to bargain in good faith typically turns on the facts of the individual case. United Steelworkers of America v. N. L. R. B., 129 U. S. App. D. C. 80, 390 F. 2d 846 (D. C. Cir. 1967). It has further been held that the employer’s announcement made in the presence of union representatives that the employer intended to grant wage increases did not constitute notification for the purpose of consultation and bargaining. McLane Co., Inc. 166 NLRB 1036 (1967).

In the present case there was no formal notice to plaintiff of the proposed change and no evidence that any formal talks took place between the employer and the union. Deputy Sheriff Coyle did testify that on several occasions during 1972 he had chance meetings with individual officers of the union at various places in the courthouse and discussed the change. He had no record of any places or dates. At best, if defendants’ contention is to be accepted as true, these were merely casual discussions concerning the change.

It is apparent that this is not the type of good faith negotiations required by N. J. 8. A. 34:13A-5.3. It is therefore held that the change of job titles was in violation of the statute, and the resolution of the board of freeholders was ineffective.

Defendants’ contention that these changes will benefit the employees and for that reason need not be negotiated is also without merit. Eirst, it is doubtful that these changes will only benefit the employees. According to the testimony of a Civil Service official, those employees who decide to remain court attendants and process officers will not be permitted to take promotional examinations and, therefore, will have no opportunity of advancement. The evidence also establishes that the position of sheriff’s officer will require additional duties not now required of court attendants and process officers. Further, even if defendants’ contention is true, any miniscule change in working conditions requires consultation and negotiation before such change can be effected. Chatham Mfg. Co., 172 NLRB 219 (1968).

An injunction will be granted against defendants, restraining their carrying into effect the resolution of September 7, 1972 until there have been formal negotiations between the parties, with the full right in either side, in the event of an impasse, to file a petition with PEEC.


text:
    KATHERINE M. LAURIA, PETITIONER, v. BOROUGH OF RIDGEFIELD, RESPONDENT-APPELLANT, v. BOROUGH OF CLIFFSIDE PARK, RESPONDENT-APPELLEE.
    Superior Court of New Jersey Appellate Division
    Argued April 30, 1973
    Decided May 18, 1973.
    Before Judges Leonard, Halpern and Martino.

      Mr. Robert B. Meyner argued the cause for appellant (Messrs. Meyner and Wiley, attorneys; Mr. William P. Verdon, on the brief).

      Mr. Michael S. Waters argued the cause for appellee (Messrs. Carpenter, Bennett & Morrissey, attorneys; Mr. Arthur M. Lizza, on the brief).
   Per Curiam.

James Lauria, a volunteer fireman in the Borough of Ridgefield, was killed on October 15, 1967 while fighting a fire in the Borough of Cliffside Park. His widow filed a claim petition in the Workmen’s Compensation Division against Ridgefield. Ridgefield attempted to join Cliff-side Park and other municipalities who are members of a Mutual Aid Agreement as parties to the compensation action asserting that Cliffside Park was a co-employer and the other members joint employers. This relief was denied by the Judge of the Division.

After entry of a Judgment in the Division in favor of the widow and against Ridgefield) Ridgefield appealed to the County Court solely from the Order dismissing its claim against Cliffside Park. Following oral argument before the County Court Judge, a written opinion was rendered affirming the Division’s Judgment in favor of Cliffside Park. 119 N. J. Super. 287, decided May 16, 1972.

The Judgment dismissing Bidgefield’s claim against Cliff-side Park is affirmed substantially for the reasons expressed in the filed Opinion of Judge Toscano in the County Court.


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. ANDREW J. LEICHT, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted March 12, 1973
    Decided May 22, 1973.

      Mr. Stanley Van Ness, Public Defender, attorney for appellant (Mr. Donald B. Devin, designated attorney, of counsel and on the brief).

      Mr. Martin F. Caulfield, Gloucester County Prosecutor, attorney for respondent.
    Before Judges Fritz, Lynch and Trautwein.
   Per Curiam.

Defendant was found guilty in the Municipal Court of Swedesboro-Woolwich of a violation of N. J. 8. A. 2A:119-2 (larceny). He was fined $150. After timely notice of appeal he was again found guilty after a trial de novo in the County Court. A new fine of $50 and $25 costs was imposed.

Defendant bottoms his appeal from the latter conviction on the following grounds:

(1) The court should have granted his motion to dismiss after the State had rested because there was no requisite proof of ownership of the goods in the party from whom the goods were allegedly stolen.
(2) Assuming proof of ownership and defendant’s taking of the goods, the employer-employee relationship existing at the time of the taking completely dissipated an essential element in the crime charged, to wit, absence of consent by the owner of the taking of the goods.
(3) The evidence adduced was insufficient to support the verdict.

The facts are uot complex. On September 14, 1970 defendant was employed by Morris Trucking Co. as a truck-driver and had been so employed for several years. Charles E. Morris, the owner of the trucking company, and his office manager, Albert B. Elwell, testified that sometime between 5:00 and 5 :30 r.m. they observed defendant removing bags of material from the cab of his parked truck at the company’s terminal and placing them in an automobile. The weather was clear and sunny. Defendant had been seen driving this same automobile on prior occasions. When first observed defendant was approximately 200 feet from Morris and Elwell. They had traversed about 50 feet toward defendant when he got into the ear and drove away. They entered their car and gave chase. They observed the car, later found to be registered in the name of Paschale Di Cintio, a fellow employee defendant, parked at a tavern about one-half mile away from the truck terminal. Upon examination they further observed nine 60-lb. bags of sugar in the vehicle of the value of about $7 a bag and called the police. Defendant and Di Cintio were present at the tavern premises. Defendant’s own motor vehicle was also parked on the tavern premises. Defendant admitted that he had been at the tavern only a few minutes before Morris and Elwell arrived. Defendant took the stand and denied taking any goods or materials from the cab of his, truck. It was uncontradicted that defendant drove the truck on the day of the alleged larceny; that Morris Trucking Co. had a contract to deliver sugar in 60-lb. bags to various supermarkets; that the brand name “Sue-Crest” was stamped on the bags of sugar found in the Di Cintio vehicle, as were a portion of the sugar bags loaded on defendant’s truck on the date of the larceny; that on September 14, 1970 defendant’s truck was loaded for delivery of sugar for which he signed a loading receipt; that defendant returned to the trucking terminal at the end of the day with receipts for delivery of all sugar previously loaded on his truck.

N. J. 8. A. 2A:119-2, entitled “Stealing money, chattels and other articles, property and things,” has been held to comprehend the common law offense of larceny. Gardner v. 8tate, 55 N. J. L. 17 (Sup. Ct. 1892), aff’d 55 N. J. L. 652 (E. & A. 1893) ; 2 Schlosser, Criminal Laws of New Jersey (3d ed. 1970), § 66:2 at 218. As such it is the wrongful or fraudulent taking and carrying away by any person of the personal property of another, from any place, with a fraudulent intent to deprive the owner of his propertju White v. Metropolitan Life Ins. Co., 118 N. J. L. 149, 151 (E. & A. 1937); State v. Bullitt, 64 N. J. L. 379, 381 (Sup. Ct. 1900); Gardner v. State, supra; State v. Davis, 38 N. J. L. 176, 177 (Sup. Ct. 1875); State v. South, 28 N. J. L. 28, 29 (Sup. Ct. 1859).

The complaint, here pertinent, charged defendant with taking, stealing and carrying away nine 60-lb. bags of sugar, of the value of approximately $65, from a Morris Trucking Co. truck. The complaint did not allege that Morris Trucking Co. was the owner of 'the sugar nor did the State’s case so prove. The most that one can conclude from the proofs is that someone other than Morris Trucking Co. or defendant, presumably the consignor-sugar company, owned the sugar. While defendant does not attack the sufficiency of the complaint filed in the municipal court, he does contend that proof of legal ownership in Morris Trucking Co. is an essential element of the crime charged and the absence of such proof is a fatal deficiency in the State’s case. Indeed, even if the complaint had alleged the goods were the property of Morris Trucking Co., defendant cannot prevail on this point. State v. Trunfio, 58 N. J. Super. 445 (App. Div. 1959), is clearly dispositive. There, defendant was charged in an indictment with the larceny of whiskey alleged to be the property of a common carrier while en route to a consignee. In response to the same argument, here present, referable to lack of ownership in the carrier, the court held that it was not necessary to state the nature of the interest held by the party from whom the goods were taken. Proof that the interest of the one from whom the goods were taken was that of a common carrier was sufficient to sustain the indictment, again underscoring the principle that the essential element of larceny is not that the property belonged to or was owned by a specific person or entity but rather that it was the property of someone other than the thief. 58 N. J. Super, at 448. In the present case it is conceded that Morris Trucking Co., as a common carrier, lawfully possessed sugar on board its truck of which the defendant was the driver on the date of the alleged larceny.

Moreover, it has even been held that an indictment for larceny is not insufficient for the reason that it alleges the owner of the property is unknown, State v. Cohen, 105 N. J. L. 529, 534 (Sup. Ct. 1929), and that larceny may even lie by one thief from another, State v. Brown, 72 N. J. L. 354, 356 (Sup. Ct. 1905), aff’d o. b. 73 N. J. L. 679 (E. & A. 1906). The proofs herein abundantly support the conclusion that the sugar found in Di Cintio’s automobile was owned by someone other than defendant.

Defendant further contends that because, in his view, a larceny requires a stealing in the original taking, existence of consent of the legal owner or bailee to the possession of the property by another, as by handing it over to him or putting him in possession, generally negatives larceny. Here, defendant argues that assuming the goods were handed to him by his employer, the bailee of the true owner, the sugar company, then the foregoing proposition is called into play. Not so. While, in order to constitute larceny, it is a fundamental necessity that the property be taken without the consent of the owner or possessor and with animus furandi, that is, with the intent to deprive the owner or possessor permanently of the property taken, Adams v. State, 45 N. J. L. 448, 449-450 (Sup. Ct. 1883); 2 Wharton, Criminal Law and Procedure (Anderson 1957), § 452 at 80, there is persuasive authority that a taking by a servant or employee having bare charge of the property of another constitutes larceny, the property at the time of the taking being deemed in law to be in the possession of the master, the possession of the servant or agent being that of the master. 2 Schlosser, Criminal Laws of New Jersey (3d ed. 1970), § 66:8 at 222.

Here defendant had bare charge of the nine bags of sugar as the employee of the trucking company. His possession was that of his employer. Moreover, when defendant is the caretaker or other person having the mere custody of personal property, as distinguished from legal possession, he is guilty of larceny at common law or under the statutes declaratory of common law, when he feloniously appropriates the property to his own use. Seiden v. United States, 16 F. 2d 197, 198-199 (2d Cir. 1926); Atkinson v. United States, 53 App. D. C. 277, 289 F. 935, 937 (1923); United States v. Strong, 27 Fed. Cas. P. 1356 (No. 16,411) (D. C. Cir. 1878). Furthermore, the rule that a felonious intent must exist at the time of the taking and carrying away does not prevent a person receiving from another the bare charge or custody of the latter’s property, from being held guilty of larceny when he subsequently forms the felonious intent to and does convert such property ■ — • this for the reason that the owner retains constructive possession, from which the taking and to which the trespass occurs, not at the time of the delivery by the owner, but at the time of the conversion. Dignowitty v. State, 17 Tex. 521, 67 Am. Dec. 670, 671 (Sup. Ct. 1856); People v. Call, 1 Denio 120, 43 Am. Dec. 655, 657 (N. Y. Sup. Ct. 1845); 2 Wharton, Criminal Law and Procedure (Anderson 1957), § 466 at 105-106; See generally, Annotation, “Larceny as affected by distinction between custody and possession,” 125 A. L. R. 367 (1940); 50 Am. Jur. 2d, Larceny § 93 at 271 (1970).

It thus becomes unnecessary to deal with the question of whether defendant was still in the course of his employment at the end of the day, after he had parked his truck at his employer’s terminal and departed with the sugar. If he, indeed, took the sugar from the cab for his own designs, whether still in the course of his employment or not, there was a clear deviation from his assigned duties as an employee and he will thus be held accountable. Thus we conclude that a denial of defendant’s motion for acquittal at the end of the State’s ease was proper.

Likewise, we conclude that there was sufficient evidence to support the verdict. A few minutes after Morris and Elwell had seen defendant remove bags of sugar from the cab of his truck and place them in an automobile and drive off, they identified the bags in the automobile they had seen leave the scene. If there is evidence of a sufficient quality to convince the jury beyond a reasonable doubt of defendant’s guilt, it does not matter that the evidence is circumstantial, particularly where unexplained and exclusive possession of stolen property a short time after a theft can justify an inference that the possessor is the thief, and the shorter the period of time between the theft and possession the stronger the inference becomes. State v. Dancyger, 29 N. J. 76, 84-85 (1959), cert. den. 360 U. S. 903, 79 S. Ct. 1286, 3 L. Ed. 2d 1255 (1959).

Affirmed.


author: Leonard, J. A. D.

text:
    BERTHA SCHRAMM AND GEORGE SCHRAMM, PLAINTIFFS-RESPONDENTS, v. ARSENAL ESSO STATION, DEFENDANT-RESPONDENT, AND KRAUSZER’S VENDING, INC., DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued April 2, 1973
    Decided May 24, 1973.

      Before Judges Collester, Leonard and Halpern.

      Mr. Herbert C. Klein argued the cause for appellant Krauszer’s Vending, Inc. (Messrs. Krieger and, Klein, attorneys; Mr. William J. Pollinger, on the brief).

      Mr. Philip M. Lutbader argued the cause for respondent Arsenal Esso Station (Mr. David Lustbader, of counsel).
   The opinion of the court was delivered by

Leonard, J. A. D.

In this personal injury, slip-and-fall case, defendant Krauszer’s Vending, Inc. (Krauszer’s) appeals from a final judgment entered in favor of plaintiff Bertha Schramm in the sum of $5,000 and against defendants Krauszer’s and Arsenal Esso Station (Arsenal), jointly and severally. Krauszer’s also appeals from an order denying its motion for indemnification from Arsenal.

The trial was bifurcated and resulted in a jury verdict on the issue of liability in favor of plaintiff and against both defendants. Thereafter, the parties waived a jury trial as to damages and the above-noted final judgment was entered, without prejudice, however, to Krauszer’s right to appeal the liability aspect of the case.

On February 13, 1969, at or about 1 a.m., plaintiff drove to the Arsenal Esso station to purchase some milk from a milk machine located on the premises, as she had previously done on an average of two to three times a week. When she arrived, the station was closed for business. However, bright lights illuminated the milk machine. She parked her ear, walked down a path to the machine, found it empty and was returning to her car through another path when she slipped and fell on the ice or snow accumulated on the premises. It had snowed 6.3 inches four days before the accident and 4.3 inches three days before.

Arsenal owned the service station. Krauszer’s owned the milk machine, which had been placed on the premises some eight or nine years ago pursuant to an oral agreement between the parties. Krauszer’s paid Arsenal one cent for each quart of milk sold, plus $12 a month to cover electricity costs. Krauszer’s maintained the machine, the shelter which housed it, as well as the attached lights. Krauszer’s placed milk in the machine almost daily at 8 a.m. It had been loaded on the day of the accident and on the preceding day.

During the years Arsenal cleared the premises of snow and ice. Even though there was no express agreement with respect to the area in front of the milk machine, Arsenal included it in its clearing operations.

The foreman of the jury in announcing the verdict stated that the jury found that “both defendants are guilty of negligence in the maintenance of the milk machine area $ * % »

On this appeal Krauszer’s first contends that it owed no duty to plaintiff and was therefore not liable for plaintiff’s injuries as a matter of law. It argues that the relationship between it and Arsenal was that of licensor-licensee and by reason thereof it was not in possession of, nor did it have control of, any portion of Arsenal’s premises. This contention and the argument in support thereof are without merit.

We assume, without deciding, that the relationship between defendants was that of licensor-licensee. Nevertheless, Krauszer’s, independent of any duty owed by Arsenal, owed a duty to those members of the public whom it openly invited to make use of the milk machine to use reasonable care to maintain in a reasonably safe condition that area of the premises in the immediate locale of the machine, as well as the direct access ways to and from it. See Willett v. Pilotte, 329 Mass. 610, 109 N. E. 2d 840 (Sup. Jud. Ct. 1953); Hill v. Chesapeake & Potomac Telephone Co., 42 App. D. C. 170, 51 L. R. A. N. S. 1072, Ann. Cas. 1915D, 1085 (1914).

Green v. Southern Bell Tel. & Tel. Co., La., 204 So. 2d 648 (La. Ct. App. 1967), cert. den. 251 La. 859, 206 So. 2d 711 (Sup. Ct. 1968), and Sullivan v. New York Telephone Co., 157 App. Div. 642, 142 N. Y. S. 735 (App. Div. 1913), aff’d o.b. 160 App. Div. 928, 145 N. Y. S. 1147 (App. Div. 1914), relied upon by Krauszer’s, are both factually inapposite.

Under the existing circumstances, the court correctly denied defendants’ motion for a dismissal of plaintiffs’ case against it and the jury verdict finding both defendants jointly and severally liable was legally proper. Cf. Krug v. Wanner, 28 N. J. 174, 182-183 (1958). By reason of the above, we find no plain error in the judge’s charge.

Defendant Krauszer’s next contention that its negligence was only secondary to Arsenal’s and therefore Krauszer’s is entitled to indemnification from Arsenal, is without merit. The trial judge correctly held that a party seeking common law indemnification from another must be without personal fault. See Adler’s Quality Baking, Inc. v. Gaseteria, Inc., 32 N. J. 55, 79-81 (1960); Public Service Elec, and Gas Co. v. Waldroup, 38 N. J. Super. 419, 432 (App. Div. 1955); Hut v. Antonio v. Guth, 95 N. J. Super. 62, 69-70 (Law Div. 1967); Restatement, Restitution, § 96 (1937). Thus, the jury’s finding that both defendants were negligent bars Krauszer’s from indemnity against Arsenal.

Affirmed.


author: Mintz, J. A. D.

text:
    JO ANN HAUSMAN, PLAINTIFF-APPELLANT, v. DEPARTMENT OF INSTITUTIONS AND AGENCIES, DIVISION OF PUBLIC WELFARE, IRVING ENGELMAN, DIRECTOR, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Submitted April 30, 1973
    Decided May 24, 1973.

      Before Judges Carton, Mintz and Seidman.

      Ms. Alice Ashley Costello, Director of Legal Aid Society of Mercer County, attorney for appellant (Mr. Michael J. Weintraub, on the brief).

      Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney for respondent (Mr. Stephen Skillman, Assistant Attorney General, of counsel; Ms. Joan W. Murphy, Deputy Attorney General, on the brief).
   Mintz, J. A. D.

Plaintiff appeals from the decision of the Director, Division of Public Welfare, Department of Institutions and Agencies of the State (Division), dated August 21, 1972, which determined that her welfare grant was correctly calculated in accordance with the Division’s regulations.

Appellant and her daughter receive assistance from the Mercer County Welfare Board under the “Aid to Dependent Children” program (ADC), 42 U. S. C. A. § 601 et seq., and the New Jersey statutes relating to ADC, N. J. S. A. 44:10-1 et seq.

Appellant requested a fair hearing before the Division, but agreed to accept a written statement of the Division’s position in lieu of a hearing determination. The Director of the Division in his letter statement indicated that the Manual provides public assistance for each eligible unit, and that the allowance is determined according to the size of the household and the number of persons in the eligible unit. He further stated that eligible unit refers to the person or persons who apply and are eligible to receive public assistance. The Manual defines' household as the persons living together as a family unit without regard to relationship by blood or marriage. The Director further stated:

The foregoing provisions of official regulations apply without regard to the financial circumstances of the non-eligible person or persons who are members of the household and without regard to whether they do or do not contribute income to the support of the eligible unit.
If we are correct in our understanding that there is no contention about the facts, as we have stated them above, then I advise you that a correct Decision, pursuant to any Fair Hearing proceeding before this Department, would necessarily affirm the action by the Welfare Board in determining grant entitlement in accordance with the foregoing regulations.

Prior to June 1, 1971 appellant and her daughter received a $225 monthly grant, calculated according to the Categorical Assistance Budget Manual. This grant was computed on the basis of two eligible persons living in a household consisting of two people. The monthly grant was reduced to $178, effective June 1, 1971, as a result of the fact that a second adult had moved into the premises, thereby increasing the size of the household from two to three. The State regulations provided that a household consisting of three people, two people being eligible for assistance, was only entitled to $178. The theory behind the difference is that as a household beeeomes larger, there are certain economies of scale that come into play. In other words, the per capita cost of maintaining a person in a household where three people live is less than the per capita cost where two people share a household. In computing the need of two eligible people in a household consisting of three people, the Division’s regulations dictate that the cost of maintaining a household of three be multiplied by two-thirds. The resulting “need” calculation is therefore a lesser amount than would result if need was computed on the basis of the two eligible people sharing the household without the presence of the third.

On July 1, 1971 the Division replaced the Categorical Assistance Budget Manual with the Financial Assistance Manual (Manual). The same principle concerning economies of scale apply in the new manual, but because need computations were figured somewhat differently appellant’s monthly grant was computed as $188 instead of $178.

Appellant and her daughter have no income. She asserts that the second adult in the household, her paramour, contributes, nothing to the maintenance of the household. Significantly respondent does not dispute this.

On appeal appellant challenges the validity of §115 of the Manual as it applies to her ease. Her basic contention is that the reduction of her welfare grant because of a non-related person living in the household was invalid because there was admittedly no contribution by the nonrelated person to the maintenance of the household.

We find that §115 of the Manual as applied to the facts of this case is contrary to the Social Security Act. 42 U. 8. C. A. § 602(a)(7) provides:

Except as may be otherwise provided [in § 402(a)(8)] * * * the State agency shall, in determining need, take into consideration any other income and resources of any child or relative claiming aid to families with dependent children * * *.

The Department of Health, Education and Welfare (HEW) has enacted a number of regulations implementing this statute. One such regulation is 45 GFB 233.20(a) (3) (ii) (c) which provides in pertinent part:

[I]n establishing financial eligibility and the amount of the assistance payment * * * (c) only such income as is actually available for current use on a regular basis will be considered, and only currently available resources will be considered.

A later regulation, 45 OFB 203.1, provides:

[T]he presence in the home of a “substitute parent” or “man-in-the-house” * * * is not an acceptable basis *' * * for assuming the availability of income by the State.
[I]n the consideration of all income and resources in establishing financial eligibility and the amount of the assistance payment, only such net income as is actually available for current use on a regular basis will be considered, and the income only of the parent * * * will be considered available for children in the household in absence of proof of actual contributions.

Both of these regulations have been upheld by the United States Supreme Court. King v. Smith, 392 U. S. 309, 88 S. Ct. 2128, 20 L. Ed. 2d 1118 (1968). Lewis v. Martin, 397 U. S. 552, 90 S. Ct. 1282, 25 L. Ed. 2d 561 (1970). In both King and Lewis the court made it clear that only income that is in fact available may be considered in the determination of the amount of a welfare grant.

King and Lewis are factually similar to the case at bar. In each instance a male moved in with the mother of an otherwise eligible unit. We can see absolutely no difference between reducing or cutting off the assistance grants on the theory that the “MAES” (male assuming the role of spouse), is providing income, as was the case in King and Lewis, and reducing the assistance grant on the theory that the per capita cost of three people living together is less than that of two people living together, and the mother and daughter now only pay two-thirds of the total cost. The latter is clearly based on the assumption that the new member of the household, the MAES, is contributing income equal to one-third the cost of the maintenance of the household. King and Lewis made it clear that it cannot be assumed that a MAES is contributing to the income of the household. As already noted, in the case at bar it was conceded by respondent that the MAES did not in fact contribute. Por this reason §115 of the Pinancial Assistance Manual as applied to the facts of this case is inconsistent with the Social Security Act and the regulations enacted pursuant thereto.

The decision of the Division is reversed. Appellant’s welfare grant is adjusted to $214 monthly retroactive to the date of reduction.


author: Lynch, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JAMES PARSELLS, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted April 7, 1973
    Decided May 30, 1973.

      Before Judges Fritz, Lynch and Trautwein.

      Mr. Stanley C. Van Ness, Public Defender, attorney for appellant (Mr. Michael L. Perlin, First Assistant Deputy Public Defender, of counsel and on the brief).

      Mr. Bruce M. Schragger, Mercer County Prosecutor, attorney for respondent (Mr. Howard G. Golden, Assistant Prosecutor, of counsel; Mr. Franklin L. Flacks, Assistant Prosecutor, on the brief).
   The opinion of the court was delivered by

Lynch, J. A. D.

Defendant appeals from an order extraditing him to the Commonwealth of Pennsylvania for service there of a sentence to a term of lóyí to 31 years for various crimes. On or about June 22, 1964 defendant James Parsells was convicted in the Atlantic County Criminal Court of breaking and entering and sentenced to th° New Jersey State Prison for a term of not less than five nor more than seven years. On June 4, 1965 he began serving his sentence and was subsequently paroled on December 19, 1967. Parole was revoked on July 15, 1968, apparently in light of defendant’s further conviction on or about May 0, 1967 on a charge of petit larceny in the same court. The record is unclear as to whether defendant was then incarcerated and served the remainder of his term or that he was again paroled. The latter is more probable (in light of the length of his original sentence), for on February 11, 1970 he was arrested in the Commonwealth of Pennsylvania and charged with a number of offenses, including burglary, larceny, receiving stolen goods, possession of dangerous drugs, possession of burglary tools and conspiracy, among others. Bail having been set and later revoked, defendant was placed in the Delaware County (Pennsylvania) jail. On February 2, 1971 Parsells was tried before a jury on the above offenses and convicted three days later on February 5, 1971. Thereafter, on March 10, 1971 the Governor of New Jersey issued a requisition warrant to the Governor of Pennsylvania pursuant to N. J. 8. A. 2A:160-1 et seq. On April 5, 1971 defendant' was sentenced in the Court of Common Pleas of Delaware County to a term of 15J^ to 31 years in the Pennsylvania State Prison and, as stated in defendant’s brief, immediately thereafter extradited to New Jersey for service of his sentence as a parole violator. Defendant began serving his sentence in New Jersey during April 1971, continuing until April 28, 1972. Prior to defendant’s release from the New Jersey State Prison a “detainer” was filed there by Pennsylvania authorities for return of defendant to that jurisdiction. Un July 28, 1972 the .date scheduled for defendant’s release from State Prison, he and -counsel appeared before the Superior Court, Law Division, Mercer County, to move for a formal extradition hearing. Upon the court’s assurance that such a hearing would be required in any event prior to defendant being' extradited, the motion was withdrawn. Based upon the “detainer” both the State and defense counsel considered that the proper place for defendant was in the county jail pending an application from Pennsylvania authorities for extradition. Defendant was then incarcerated.

On August 3, 1972 the Governor of Pennsylvania issued a requisition warrant requesting the apprehension and delivery of Parsells to Pennsylvania authorities to begin serving his sentence previously imposed. That request was granted on August 16, 1972, commanding that defendant be arrested and delivered to named Pennsylvania agents. Thereafter, on September 19 and 28, 1972 a hearing was held on defendant’s- motion to vacate the Pennsylvania requisition and New Jersey extradition order. By letter opinion, dated October 6, 1972, the motion was denied. On October 24, 1972 a final hearing was had on the issues, after which defendant was ordered to be extradited to Pennsylvania. A stay of judgment was granted by the Appellate Division pending a hearing before the entire panel. On November 10, 1972 a permanent stay was granted pending this appeal.

On appeal defendant makes the following contentions: (a) Pennsylvania has waived its jurisdiction over the defendant and now cannot demand his return; (b) since defendant was neither arrested in New Jersey under a new complaint nor upon an information without a warrant, the proceedings below are without legal effect; (c) since no agent from the Commonwealth of Pennsylvania appeared within 30 days of defendant’s incarceration, ho should be discharged, and (d) no proof was offered below that defendant was in Pennsylvania on February 9, 1970, the date of the alleged crime.

Defendant contends that at the time he was released by the Pennsylvania authorities he was in custody in that state and his release amounted to a waiver by the Commonwealth of Pennsylvania of the remaining part of his sentence — “in effect,” as said in Golla v. State, 52 Del. 433, 159 A. 2d 585 (Sup. Ct. 1960), “a commutation of sentence.” His principal reliance is upon the case of People ex rel. Barrett v. Bartley, 383 Ill. 437, 50 N. E. 2d 517 (Sup. Ct. 1943).

Barrett does indeed hold that where a prisoner serving a sentence is extradited as a fugitive from justice and delivered to another state, jurisdiction over his person is forever waived by the asylum state. The trial court here distinguished Barrett and also People ex rel. O’Connor v. Bensinger, 48 Ill. 2d 440, 270 N. E. 2d 1 (Sup. Ct. 1971), on the ground that in those cases the prisoners were extradited while serving their sentences, while defendant Par-sells, said the trial court, was “transferred before he began service of his sentence.”

We disagree with the distinctions made by the trial court as to Barrett and also O'Connor. In our view, Parsells too was transferred while serving his sentence in Pennsylvania and while in custody. True, it does not appear that he was behind prison walls at that time. However, on April 5, 1971 he was sentenced in the Court of Common Pleas of Delaware County to a term of 15% to 31 years in Pennsylvania State Prison and “immediately thereafter” was transferred to New Jersey for service of his sentence as a parole violator. There was no stay of execution of the sentence nor was he on parole. Therefore at the time of his transfer he was under sentence and in custody.

Despite our difference with the trial judge as to whether Barrett is distinguishable and, indeed, considering, as we do, that it is indistinguishable on its facts, we decline to follow it. Barrett and its progeny represent the minority view on the question of “waiver” of the surrendering state’s rights to exact the full penalty for the crime committed in its jurisdiction. As the Supreme Court of Ohio stated in discussing the Barrett decision:

This, however, is the minority view. An examination of those cases shows no sound basis at law or under the Constitution to conclude that a release of a convict to one soverign for prosecution for another crime or to serve a sentence for which crime the prisoner has already been convicted by another sovereign should constitute a waiver of its rights to exact the full penalty. [Heston v. Green, 174 Ohio St. 291, 189 N. E. 2d 86-87 (Sup. Ct. 1963), cert. den. 374 U. S. 822, 83 S. Ct. 1901, 10 L. Ed. 2d 1080 (1963) ]

We likewise see no sound basis at law for the “waiver” ' recognized in Barrett, particularly since the proceedings here were pursuant to our Extradition Act, N. J. 8. A. 2A :160-1 ei seq.

N. J. 8. A. 2A:160-8 reads as follows:

Nothing in this article contained shall be deemed to constitute a waiver by this state of its right, power or privilege to try such demanded person for crime committed within this state, or of its right, power or privilege to regain custody of such person by extradition proceedings or otherwise for the purpose of trial, sentence or punishment for any crime committed within this state, nor shall any proceedings had under this article which result in, or fail to result in, extradition be deemed a waiver by this state of any of its rights, privileges or Jurisdiction in any way whatsoever.

The Commonwealth of Pennsylvania has similar provisions. 19 P. S. §§ 191.1 to 191.31. In light of the above statutory language, our courts have generally held contra to the position argued by defendant. Rau v. McCorkle, 45 N. J. Super. 191 (Law Div.), aff’d 47 N. J. Super. 36 (App. Div. 1957); State v. Williams, 92 N. J. Super. 560 (App. Div. 1966).

It is true that pursuant to N. J. 8. A. 2A:160 — 33, when a prisoner charged in this State with a crime is imprisoned in another state, the Governor of this State may agree with the Governor of the other state for the extradition of the prisoner before the conclusion of his term of sentence in such other state, upon condition that such prisoner be returned to the other state “at the expense of this State” as soon as the prosecution in this State is terminated. Defendant here argues that the foregoing section is the only authority for extradition by way of return of a prisoner to a state from which he had previously been extradited while serving his sentence, i. e., only when such agreement between the Governors has been entered into. We disagree. We consider that the Pennsylvania counterpart of our N. J. S. A. 2A:160~8 (19 P. S. § 191.27), which provides that nothing in the Extradition Act shall constitute a waiver of that state’s right to try a prisoner for crime committed in that state, has overriding significance.

We therefore hold, contrary to Barrett, that the surrender of defendant by the Commonwealth of Pennsylvania to New Jersey under the circumstances herein, did not constitute a waiver of Pennsylvania’s right to exact the full penalty for the crimes committed by defendant in that state.

Affirmed.


text:
    PRINCETON FIRST AID & RESCUE SQUAD, INC., A NONPROFIT CORPORATION OF NEW JERSEY, AND DAVID A. CROMWELL, PLAINTIFFS-RESPONDENTS, v. DIVISION ON CIVIL RIGHTS IN THE DEPARTMENT OF LAW AND PUBLIC SAFETY, STATE OF NEW JERSEY, ANNA D. LEWIS AND JEAN H. LEWIS, DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued May 15, 1973
    Decided May 31, 1973.

      Before Judges Kolovsky, Matthews and Crailay.

      Mr. David S. Litwin, Deputy Attorney General, argued the cause for appellant (Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney).

      Mr. 'William J. Brennan, III, argued the cause for respondents (Messrs. Smith, Stratton, Wise & Heher, attorneys) .
   Per Curiam.

On November 20, 1972, one Lewis filed a complaint with the Division on Civil Eights (Division) charging that Princeton First Aid and Eescue Squad, Inc. (plaintiff in the cause before us) is “subject to the New Jersey Law against Discrimination” and that it and its president, plaintiff Cromwell, had violated that law when it denied Miss Lewis the opportunity to become “a member of [plaintiff] solely because of her sex.”

On December 26, 1972 the Division sent a copy of the complaint to plaintiff and advised it that it had 20 days to answer the complaint.

Instead of filing an answer or a motion with the Division challenging its jurisdiction, plaintiffs filed a verified complaint in lieu of prerogative writs in the Law Division in which they alleged that they were not “subject to the Law Against Discrimination” and that the Division lacks jurisdiction over them. The complaint sought a declaration that the Division lacked jurisdiction, and an injunction barring the Division

* * * from in any manner or fashion pursuing the Complaint filed with it by defendant Jean H. Lewis on behalf of defendant Anna D. Lewis against the Princeton First Aid & Rescue Squad, Inc. and David A. Cromwell.

An order to show cause, embodying restraints, issued on January 22, 1973. On the adjourned return day thereof the trial court entered an order granting the injunction prayed pending the final determination of the action.

The Division sought and has been granted leave to appeal from that order. We reverse.

We find no warrant for the assumption of jurisdiction by the Law Division in this case. Pfleger v. N. J. State Sigh-way Dept., 104 N. J. Super. 289 (App. Div. 1968), upon which plaintiffs rely, is clearly distinguishable. That case was an action in the nature of mandamus to compel the Department of Transportation to perform its ministerial duty to institute condemnation proceedings to determine the value of lands allegedly taken and damaged in the course of the construction of a road. Enforcement of such a ministerial duty is within the jurisdiction of the Law Division.

Here, however, we are concerned not with a ministerial duty of a state agency but with the quasi-judicial duties of such an agency, the Division on Civil Rights, vested with jurisdiction to consider, hear and determine complaints alleging violations of the laws against discrimination.

Plaintiffs’ challenge to the jurisdiction of the Division with respect to the complaint against it should have been embodied in a motion or answer filed in the Division. If that challenge were overruled, then plaintiffs could seek to review the Division’s action by application for leave to appeal to the Appellate Division, see R. 2:5-6 (a), or alternatively by raising the issue, if the final decision of the Division is adverse to it, on its appeal as of right to the Appellate Division from the final decision. See R. 2:2-3 (a). The Law Division has no jurisdiction to decide the challenge interposed by plaintiffs to the Division's jurisdiction.

The order appealed from is reversed and since, as we have ruled, the Law Division has no jurisdiction, the cause is remanded to it with directions that an order be entered dismissing plaintiffs’ complaint.