author: Kolovsky, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. ANGELO VIZZINI, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued May 3, 1971
    Decided June 7, 1971.

      Before Judges Conford, Kolovsky and Carton.

      Mr. Mario H. Volpe argued the cause for appellant.

      Mr. Robert A. Farkas, Assistant Prosecutor, argued the cause for respondent (Mr. Bruce M. Schragger, Mercer County Prosecutor, attorney).
   The opinion of the court was delivered by

Kolovsky, J. A. D.

Defendant appeals from convictions for permitting his premises to be used for the conduct of a business of lottery (N. J. S. A. 2A :121-3 (c)) and for working for a lottery (N. J. S. A. 2A:121-3(a)), and from the sentences imposed.

The uncontradicted proofs established that State Police detectives, armed with a search warrant, entered defendant’s home, descended a stairway leading to the cellar and found a doorway leading to a room. The door was locked. The police heard a voice in the room but the’ occupant ignored the officer’s request that the door be opened. Efforts of the police to knock the door down by use of a sledge hammer were unsuccessful. The door was finally opened from the inside by defendant.

The room contained, among other things, a table and chairs, two telephones on a table and water-soluble papers. The telephone rang two or three times. Detective Castellano than attached the suction cup of an induction coil to the back of the receiver of the telephone and inserted the other end oi the induction coil into the microphone jack of a tape recorder which the police had brought with them.

During the ensuing half-hour, a number of telphone calls were received by the detective. Castellano’s conversations with the callers, ten of whom placed a total of 45 bets-amounting to $178.05, were recorded on the tape recorder.

When Detective Castellano testified at the trial, the court, over defendant’s objection, permitted the jury to hear the tape recording of the telephone conversations between the detective and the callers.

Defendant argues that the attachment of the coil and the recording of the telephone conversations violated the federal act prohibiting the interception of telephone calls, 18 U. S. C. A. § 2511, as well as this State’s “wire tap statute,” N. J. S. A. 2A:146-1 (since repealed by L. 1968, c. 409, § 27), and therefore the tape recording should not have been admitted into evidence. Cf. Lee v. Florida, 392 U. S. 378, 88 S. Ct. 2096, 20 L. Ed. 2d 1166 (1968).

The argument lacks merit. What Detective Castellano did in answering the phone and in recording the conversations violated neither the federal nor the state statute.

Defendant contends that Castellano violated so much of 18 U. S. C. A. § 2511 as provides that:

(1) Except as otherwise specifically provided in this chapter any.' person who —
(a) willfully intercepts, endeavors to intercept, or procures' any other person to intercept or endeavor to intercept, any wire or oral communication; * * * shall be fined not more than $10,000 or imprisoned not more than five years or both.

The contention ignores however that “intercept” as used in the federal act means “the aural acquisition of the contents of any wire or oral communication through the use of any electronic, mechanical, or other device.” 18 U. S. C. A. § 2510(4).

Castellano’s acquisition of the contents of the telephonic communications resulted from his answering the telephone when it rang, not “through the use of any electronic, mechanical or other device.”

In answering the telephone when it rang, he did not “intercept” the telephone calls in violation of the federal act. See Rathbun v. United States, 355 U. S. 107, 78 S. Ct. 161, 2 L. Ed. 2d 134 (1957); State v. Carbone, 38 N. J. 19, 26 (1962), and cases cited therein.

In State v. Carbone, Supra, defendant contended that a police officer who answered a telephone call at the time of a gambling raid intercepted the telephone call and thus violated section 605 of the Federal Communication Act. (That section, 47 U. S. C. A. § 605, as it read prior to its amendment by the Omnibus Crime Control and Safe Streets Act of 1968, was comparable to 18 U. S. C. A. § 2511.) In rejecting the contention the court said:

In [Rathbun v. United States, the United States Supreme Court] held that the statute was not violated when a party to the call arranged for a third person to listen in on a regular extension line and did so without the consent of the other party to the conversation. Thus one who uses the telephone is not assured that his messages will reach only the ears for which he meant them. So long as the physical integrity of the established line is not violated, there is no interception within the meaning of section 605.
In the case before us, there was no tampering with the established means of communication. Indeed the officer was the immediate party to the call. The bettor intended his words to reach the officer, albeit the bettor thought he was soneone else. Thus the officer did not “intercept” a message while it was en route to another; there was no other on the line.
Testimony by officers as to telephone calls received by them at the time of a raid is quite commonplace. Surprisingly there are few cases considering the applicability of section 605. They do, however, unanimously hold there is no interception within section 605 or comparable state statutes. [38 N. J. at 26]

- Nor did Castellano’s answering the telephone and his subsequent disclosure of the contents of the telephone conversations violate this State’s “wire tap statute,” N. J. S. A. 2A:146-1, since there was no mechanical interference with the telephone line. State v. Vanderhave, 47 N. J. Super. 483, 490 (App. Div. 1957), aff’d sub nom. State v. Giardina, 27 N. J. 313 (1958) ; State v. Tamburello, 69 N. J. Super. 166, 170-171 (App. Div. 1961); State v. Licciardello, 107 N. J. Super. 357 (App. Div. 1969), certif. den. 55 N. J. 166 (1969).

The cited cases make it clear that Castellano could legally receive the incoming telephone calls and as a party thereto testify at the trial as to their nature and contents. “Testimony by officers as to telephone calls received by them at the time of a raid is quite commonplace.” Carbone, supra, 38 N. J. at 26.

That being so, there was nothing illegal or improper in Castellano’s recording the conversations between himself and the callers nor in the admission of those recordings into evidence. Cf. Lopez v. United States, 373 U. S. 427, 437, 83 S. Ct. 1381, 1387, 10 L. Ed. 2d 462 (1963) ; People v. Wolfson, 34 Ill. 2d 585, 217 N. E. 2d 791, 793 (Sup. Ct. 1966); see also United States v. White, 401 U. S. 745, 91 S. Ct. 1122, 1126-1127, 28 L. Ed. 2d 453 (1971) ; ABA Project on Minimum Standards for Criminal Justice: Standards Relating to Electronic Surveillance § 4.1 (final draft 1971).

Apposite are the views expressed by the United States Supreme Court in Lopez v. United States, supra, in rejecting a contention that it was error to admit into evidence a tape recording of a conversation between defendant Lopez and an internal revenue agent Davis. The record had been made on a pocket wire recorder which Davis had with him at the time he was offered a bribe by defendant. The court said;

Once it is plain that Davis conld properly testify about Ms conversation with Lopez, the constitutional claim relating to the recording of that conversation emerges in proper perspective.
* * * this case involves no “eavesdropping” whatever in any proper sense of that term. The Government did not use an electronic device to listen in on conversations it could not otherwise have heard. Instead, the device was used only to obtain the most reliable evidence possible of a conversation in which the Government’s own agent was a participant and which that agent was fully entitled to disclose. And the device was not planted by means of an unlawful physical invasion of petitioner’s premises under circumstances which would violate the Fourth Amendment. It was carried in and out by an agent who was there with petitioner’s assent, and it neither saw nor heard more than the agent himself.
The case is thus quite similar to Rathbun v. United States, 355 U. S. 107, 78 S. Ct. 161, 2 L. Ed. 2d 134, in which we sustained against statutory attack the admission in evidence of the testimony of a policeman as to a conversation he overheard on an extension telephone with the consent of a party to the conversation. The present case, if anything, is even clearer, since in Rathbun it was conceded by all concerned “that either party may record the conversation and publish it.” 355 U. S. at 110, 78 S. Ct. at 163 (Emphasis added.)
Stripped to its essentials, petitioner’s argument amounts to saying that he has a constitutional right to rely on possible flaws in the agent’s memory, or to challenge the agent’s credibility without being beset by corroborating evidence that is not susceptible of impeachment. For no other argument can justify excluding an accurate version of a conversation that the agent could testify to from memory. [373 U. S. at 438-439, 83 S. Ct. at 1387-88. emphasis added]

Finally, it should be noted that even if Castellano’s recording of the telephone conversations to which he was a party were to be deemed “interceptions” thereof within the meaning of the federal statutes, still such recordings would not be unlawful since 18 U. S. C. A. § 2511 (2) (c) provides:

It shall not be unlawful under this chapter for a person acting under color of law to intercept a wire or oral communication, where such person is a party to the communication or one of the parties to the communication has given prior consent to such interception.

Defendant’s only other contention on appeal is that the sentences imposed were unduly harsh. We conclude from our review of the trial record and of the presentence report that there is no reason to interfere with the trial court’s determination as to the sentences to be imposed.

The judgments are affirmed.


source: Caselaw Access Project

author: Seidman, J. C. C.

license: Public Domain

text:
    HARRY G. CARR, PLAINTIFF, v. STATE FARM MUTUAL INSURANCE COMPANY, A BODY CORPORATE AUTHORIZED TO DO BUSINESS IN THE STATE OF NEW JERSEY; AND JULIA SOLAN, DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided May 24, 1971.

      Mr. Alan M. Wallack for plaintiff (Messrs. Jamieson, Walsh, McCardell, Moore & Peskin, attorneys).

      Mr. Richard I. Wood for defendant State Earm Mutual Insurance Co. (Messrs. Lewis, Siegel & Wood, attorneys).

      Mr. Stephen J. Zielinski for defendant Julia Solan.
   Seidman, J. C. C.

The main issue presented is whether, under an automobile liability policy which covers a replacement automobile if the insured notifies the insurer thereof within 30 days following the delivery date, the insurer is obligated to defend the insured and pay any judgment that might be obtained in an action brought by a person injured in an accident involving the replacement automobile occurring beyond the 30-day period, the insured having notified the insurer of the acquisition of the automobile after the accident. The precise point involved does not appear to have been decided in any reported case in this State.

A secondary issue is whether notice of the accident was given to the insurer or its agent as soon as practicable.

The parties have stipulated that a policy of automobile liability insurance issued to plaintiff was in effect on August 5, 1967, when an accident occurred in which Julia Solan was injured. That the vehicle in question was not specifically described in the policy is also stipulated.

Although Julia Solan is joined as a party defendant, she has not participated actively in these proceedings.

In his complaint plaintiff alleges that he became the owner of a Chevrolet Corvair on or about July 14, 1967 (actually, the purchase was in April), and that on or about August 5 of that year, while operating the automobile, he was involved in an accident resulting in bodily injury to his passenger, Julia Solan. A negligence suit against plaintiff was instituted by the passenger and is now pending in the Law Division of this court. The complaint further alleges the issuance of the policy and the refusal of defendant insurer to defend the lawsuit and to pay any adverse judgment that might result.

State Farm disclaims any obligation to plaintiff, contending that while it had issued a policy of insurance to him, it was for another automobile, and plaintiff never made application for coverage on the Corvair. The insurer also alleges plaintiff’s failure to give timely notice of the occurrence, in accordance with the terms of the policy.

It is not in dispute that for some years prior to the accident in question plaintiff had owned a standard policy of automobile liability insurance issued by State Farm. The one submitted to the court is for a six-month period commencing October 24, 1963, and renewable for like periods thereafter upon the payment of the premium. The described automobile is a 1963 Ford.

From plaintiff’s deposition it appears that he occasionally bought used automobiles, worked on them to make them operable, and then either sold the automobile or kept it in replacement of or in addition to one he already owned. He bought the Corvair for $25 in April 1967, and in July, when it was operable, he took it for inspection. On the way back a head gasket blew and the car then remained in his yard until repairs were completed two days before the accident.

Caxr admits he did not apply for coverage when he bought the Corvair. He acknowledges, in a statement he gave to a State Parm representative, that “my intention was to get the Corvair insured by State Parm after I felt that the car was in good mechanical condition.” It appears that the first time a State Parm agent learned of either the Corvair or the accident was in October 1967, when Caxr went to the local office to pay the renewal premium and the agent, observing a bandage on Carr’s head, made inquiry. When asked why he had not reported the acquisition of the Corvair, Carr’s response was that he had not intended to insure it until it was working properly. Carr also claims he did not understand he was required to give notice to the company within 30 days after delivery of the automobile. He thought he could do so when he was ready to operate the vehicle, having heard he could do so anywhere from 30 to 90 days after registration.

There is essentially no controversy respecting these facts and they can be considered as having been found by the court.

It is now necessary to examine the pertinent provisions of the policy. One of the insuring agreements is to pay all damages which the insured shall become legally obligated to pay because of bodily injury sustained by other persons, caused by accident arising out of the ownership, maintenance or use of the owned automobile. By definition, the term “owned automobile” includes “a newly acquired automobile,” which is described as follows:

Newly Acquired Automobile-means an automobile, ownership of which is acquired by the named insured if (1) it replaces an automobile owned by the named insured and covered by this policy, or the company insures all automobiles owned by the named insured on the date of its delivery, and (2) the named insured notifies the company within SO days following such delivery date. * * * [Emphasis supplied]

Plaintiff argues, first, that the Corvair was a replacement automobile, citing Wojciechowski v. Hardware Mutual Casualty Co., 105 N. J. Super. 144 (Law Div. 1969), but the point is conceded by State Farm’s counsel, whose supplemental memorandum of law stipulates that the Corvair replaced the previously insured automobile.

The next contention is that clauses identical or very similar to the one at bar provide automatic insurance for the newly acquired automobile regardless of notice, at least for the period described in the policy. It has been held that where a policy requires notice of a newly acquired automobile within 30 days of the delivery date, interim coverage is automatic and gives protection for an accident occurring within that period, even though notice of acquisition has not been given in that time. Patrick v. State Farm, Mut. Auto. Ins. Co., 90 N. J. Super. 442 (Law Div. 1966). See also National Union Fire Ins. Co. v. Falciani, 87 N. J. Super. 157 (App. Div. 1965), holding that when automatic coverage of after-acquired automobiles is provided and the insured acquired an additional automobile, notice during the policy period was not a condition precedent to coverage and coverage was not forfeited by the insured’s failure to give notice within the policy period.

In the case now before the court State Farm knew nothing about the Corvair until October, six months after its acquisition; in fact, the accident itself was not reported for more than two months, and then only indirectly.

State Farm stipulates that had the accident occurred within 30 days of the date of delivery of the Corvair, the automatic insurance clause would have been operative and coverage would have been afforded, and that notice within the 30-day period is not necessary to effect coverage in such case. Its position is that there is no coverage here because the accident occurred after the 30-day period and before the insurer was notified of the replacement vehicle.

Plaintiff concedes that the crucial issue before the court is whether automatic coverage is limited to the 30-day period set out in the policy, but he contends that

* * * under the latest cases, notice of acquisition is not a condition precedent to coverage. Further, the automatic insurance feature lias not been limited to the notice period of the policy where the Courts have taken account of the reason underlying the provision. No new or greater risk is involved from the carrier’s point of view. The clause protects the carrier’s interest in a readjustment of the premium. That that purpose is paramount is patent in the cases and in the clause itself, which ends with the undertaking of the insured to pay such additional premium as shall be required.

No cases are cited in support of these assertions, so that the court does not know to what cases plaintiff refers. While notice of acquisition of a newly acquired automobile is not a condition precedent to coverage where the accident occurs during the prescribed period, the court's own research has disclosed no case which holds that coverage is provided even though neither the accident nor the acquisition is reported to the insurer during the time specified in the policy.

Although there is no reported case in this State on the subject, the well-established rule elsewhere is that where the automatic insurance clause requires notice of a newly acquired automobile to be given the insurer within the designated time, failure to give notice prior to an accident occurring after the expiration of the designated period precludes coverage of the new automobile.

In the case of Christiansen v. Moore, 184 Neb. 818, 172 N. W. 2d 620 (Sup. Ct. 1969), involving a clause almost identical to the one in issue, the court held:

Nevertheless, we are unable to find any authority to support plaintiff’s position that where no notice is ever given, and the accident occurred more than 30 days following delivery of the replacement car to the insured, the insured is still entitled to recover if the insurance company was not prejudiced. Courts have been unanimous in denying recovery under such circumstances. Various grounds have been relied on, although no one of them is entirely satisfactory. Thompson v. Dairyland Mutual Ins. Co., 30 Wis. 2d 187, 140 N. W. 2d 200 (1986), is illustrative of the position of many courts. In response to a contention that the insurance company must show some prejudice before it could be relieved from liability on the policy, the court said:
“But this is not a claimed breach of a policy provision perpetrated by the insured. Rather, it is the failure of the insured to perform a requirement of the policy, i. e., to give notice of a change of vehicle, in order to gain coverage of a different vehicle under the policy. It is not a question of discontinuing coverage because of some act by the insured that breaches his contract; rather, it is the insured’s failure to do some act that is required to bring about coverage. By liis failure to give proper notice, Levy was not insured by the subject policy at the date of the accident. Thus, the breach cases are not in point at all.”
In any event, the authorities unanimously agree that where no notice is given, there is no coverage of the replacement automobile with respect to accidents occurring after the prescribed period has elapsed. See, 7 Blashfield, Automobile Law and Practice, Insurance, § 310.6, p. 672; 7 Am. Jur. 2d, Automobile Insurance, § 100, p. 408; Annotation, Automobile Insurance — Substituted Oars, 34 A. L. R. 2d 936, § 7, p. 943 ; 7 Appleman, Insurance Law and Practice, § 4293, p. 84.
tinder the “automatic insurance” provision before us, coverage extends to a replacement automobile as defined in the policy for 30 days following the delivery, in all events, irrespective of notice; but where notice is not given prior to the accident, there is no coverage with respect to accidents occurring after the 30-day period has elapsed.

See also Providence Washington Indent. Co. v. Edes, 109 F. Supp. 813 (D. Me. 1953) ; Sierra v. Romprey, 165 F. Supp. 483 (D. N. H. 1958), app. dism. 262 F. 2d 287 (1 Cir. 1958); Kelly v. State Farm Mut. Auto. Ins. Co., 256 F. Supp. 978 (E. D. Tenn. 1966); Mitcham v. Travelers Ind. Co., 127 F. 2d 27 (4 Cir. 1942), Everly v. Creech, 139 Cal. App. 2d 651, 294 P. 2d 109 (D. Ct. App. 1956); Williams v. Standard Acc. Ins. Co., 158 Cal. App. 2d 506, 322 P. 2d 1026 (D. Ct. App. 1958); Inghram v. Dairyland Mut. Ins. Co., 178 N. W. 2d 299 (Iowa Sup. Ct. 1970); Collard v. Globe Indem. Co., 50 So. 2d 838 (La. Ct. App. 1951); Mathews v. Marquette Casualty Co., 152 So. 2d 577 (La. Ct. App. 1963); Union Auto. Indem. Assoc. v. Reimann, 171 S. W. 2d 721 (Mo. App. 1943); Mistele v. Ogle, 293 S. W. 2d 330 (Mo. Sup. Ct. 1956); Schaller v. Aetna Cats. & Sur. Co., 280 App. Div. 988, 116 N. Y. S. 2d 729 (Sup. Ct. 1952), aff’d 306 N. Y. 725, 117 N. E. 2d 908 (Ct. App. 1954); Pride v. State Farm Fire & Casualty Ins. Co., 434 S. W. 2d 146 (Tex. Civ. App. 1968); Maryland Casualty Co. v. Toney, 178 Va. 196, 16 S. E. 2d 340 (Sup. Ct. 1941); Summerwell v. Farmers Ins. Exchange, 50 Wash. 2d 636, 313 P. 2d 1112 (Sup. Ct. 1957); Clow v. National Indem. Co., 54 Wash. 2d 198, 339 P. 2d 82 (Sup. Ct. 1959); Thompson v. Dairyland Mut. Ins. Co., 30 Wis. 2d 187, 140 N. W. 2d 200 (Sup. Ct. 1966).

Whether notice given after the specified period, but prior to the accident, would effect coverage of the new automobile is not an issue in this ease, and need not be considered.

The court concludes that on the facts here present the policy of automobile liability insurance issued by State Earm does not cover plaintiff’s Corvair; consequently, State Farm is not obligated to defend the pending suit against plaintiff or to pay any judgment for damages that may be entered therein.

In view of these conclusions, the court deems it unnecessary to determine whether plaintiff failed to give notice of the accident as soon as practicable, in accordance with the policy conditions.

Judgment will be entered in favor of defendant State Farm Mutual Insurance Company, consistent with the conclusions reached herein.


author: Fritz, J. A. D.

text:
    MARGARET SPROCK OR BERNARD EPPS, AGENT FOR MARGARET SPROCK, PLAINTIFFS-RESPONDENTS, v. FLORENCE JAMES, ET ALS., DEFENDANTS-APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Argued April 26, 1971
    Decided May 10, 1971.

      Before Judges Goldmann, Leonard and Fritz.

      Mr. Richard E. Blumberg argued the cause for appellants (Miss Sandra D. Helbig, Newark Legal Services Project, attorney; Miss Rita L. Murphy, Newark-Essex Joint Law Reform Project, of counsel).

      Mr. Herman Chasnow argued the cause for respondents.
   The opinion of the court was delivered by

Fritz, J. A. D.

The essence of appellants’ argument to this court, emerging from a complicated continuum of landlord and tenant hearings in the county district court, is that the district court erred in entering a judgment for possession for nonpayment of rent without considering proffered equitable defenses, and in paying to the landlord, contemporaneously therewith, the rent in question which had been held first by defendants’ escrow agents and later paid into court. A collateral appeal in connection with an application to the Superior Court for removal of the county district court actions pursuant to N. J. S. A. 2A:18-60 has been abandoned.

We are aware that the proceedings below were prior in time to the landmark decision in Marini v. Ireland, 56 N. J. 130 (1970). Nevertheless we agree with defendants that the trial court erred.

The factual setting, while not determined on the merits, is one typical of those increasingly recurrent in the inner city since the Marini decision. Defendants, tenants under month-to-month oral leases, dissatisfied with repairs allegedly made by plaintiff following their complaints to the municipal authorities, withheld their rents from the landlord, paying them instead to escrow accounts. ¡ The landlord brought summary dispossess actions in the county district court under N. J. S. A. 2A:18-53.

There is no real dispute with respect to the procedural aspects of the matter. While these are complex, they can be briefly synthesized for the purpose of this determination. On the initial hearing, the factual situation with respect to the rents as related above was disclosed to the court together with a proffer of proof by defendants of equitable defenses relating to habitability. The court expressed concern solely as to whether the rents had been paid to the landlord. The hearings were adjourned to permit defendants to apply to the Superior Court for removal of the dispossess actions to that court under N. J. S. A. 2A:18-60, with the direction at the same time that the rent monies held in escrow be paid into court. The application for removal was denied, and the parties returned to the county district court for further hearings. That court then refused to hear the proffered equitable defenses and determined that the rents were due and owing, whereby judgments of possession (from which warrants of removal later issued) were entered. These directed that the rents held in 'escrow should be paid to the landlord. We believe this latter action was impelled by the landlord’s argument that possession was not enough, and that if she did not receive the rents as well, her mortgage would be foreclosed.

We pause to note the inconsistency in the final determination, of which defendants now understandably complain. The actions were simply for possession on the ground of nonpayment of rent. Brought as they were under the summary dispossess statute, they were not actions for recovery of the rent. To the extent that the rent, held in escrow by direction of the court, was paid over to the landlord, it gave the landlord a remedy not sought and not available in her particular action. To the extent that payment was thus made, the payment abrograted the grounds for possession. Without regard for the moment to the error of the court in refusing to hear the equitable defenses, we hold to the opinion, as defendants urge, that the court’s action in permitting the landlord to have both possession and the rent was error.

Additionally, we are convinced that even prior to Marini equitable defenses in an action of this type should have been available to defendants under Vineland Shopping Center, Inc. v. DeMarco, 35 N. J. 459, 469 (1961). See also Carteret Properties v. Variety Donuts, Inc., 49 N. J. 116, 124 (1967). To the extent that the court refused these, it erred.

We were advised at oral argument that in the 21 months that have transpired since these matters were heard below, all the tenants involved, except one who chose to pay his rent and hold over for a further term or terms, have been evicted under the warrants of removal or have left. This does not moot the matter because under Marini defendants are entitled to a determination, upon proper proofs, as to whether they should receive the benefit of a diminution in rent.

While we have no difficulty in thus concluding that error prejudicial to defendants infected the determination below and that the actions should be retried, the problem of the remedy to be afforded at this late date is troublesome. We reject defendants’ contention that the monies should now be returned to the tenants, leaving the landlord — who has obtained the possession she sought — to her remedy of another action to recover rent for the period during which the tenants admittedly occupied the premises and did not pay the rent other than as outlined above. Rather, we see no reason why we should not now do that which should have been done before. Accordingly, we reverse with directions that the landlord shall repay to the county district court clerk the monies paid to her under the judgment below, without interest. The court below shall schedule the matters for rehearing promptly, and shall hear each of the causes in which the defendant appears. In the event of nonappearance by defendant after proper notice, the prior judgment shall not be disturbed as to that defendant. With respect to the actions thus heard, since possession is no longer an issue, the court shall consider only whether the rental due should be diminished in whole or in part by virtue of the considerations suggested in Reste Realty v. Cooper, 53 N. J. 444 (1968) and later given life and form in Marini. The court should also hear any other equitable defenses offered by defendants. Since possession is no longer the question, defendants shall in each ease bear the burden of proof. Upon the conclusion of those hearings, the court shall order such distribution of the funds in court as the evidence compels. It should also set off against the portion of the funds due the respective tenants, if any, any obligation of that tenant for rent proved by the landlord to be due and owing for tenancy after the prior hearings and before removal.

Eeversed and remanded in accordance with the foregoing. No costs. Wo do not retain jurisdiction.


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

text:
    TOWNSHIP OF LITTLE FALLS, BOROUGH OF POMPTON LAKES, BOROUGH OF RINGWOOD, BOROUGH OF TOTOWA, BOROUGH OF WANAQUE, TOWNSHIP OF WAYNE, TOWNSHIP OF WEST MILFORD, AND BOROUGH OF WEST PATERSON, ALL MUNICIPAL CORPORATIONS OF NEW JERSEY, PETITIONERS-APPELLANTS, v. PASSAIC COUNTY BOARD OF TAXATION, RESPONDENT-RESPONDENT, AND CITY OF CLIFTON, CROSS-PETITIONER-RESPONDENT, AND DIVISION OF TAX APPEALS, RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued June 7, 1971
    Decided June 15, 1971.

      Before Judges Goldmann, Leonard and Fritz.

      Mr. Charles H. Landesman argued the cause for appellants.

      Mr. Herbert K. Glickman, Deputy Attorney General, argued the cause for respondents Passaic County Board of Taxation and the Division of Tax Appeals (Mr. George F. Kugler, Jr., Attorney General, attorney; Mr. Elias Abelson, Assistant Attorney General, of counsel; Mr. Richard M. Conley, Deputy Attorney General, on the brief).

      Mr. Frank A. Carlet, First Legal Assistant, argued the cause for cross-petitioner-respondent (Mr. Arthur J. Sullivan, Jr., City Counsel, attorney).
   The opinion of the court was delivered by

Goldmann, P. J. A. D.

Petitioner municipalities appeal from a determination and judgment of the State Division of Tax Appeals which affirmed the Passaic County equalization table for 1970 and dismissed their appeal from that table.

Respondent county board of taxation had on January 27, 1970 promulgated the 1970 preliminary equalization table wherein the aggregate true value for each revalued taxing district was determined by applying the so-called "page 8 formula.” There were ten such revalued taxing districts, and by using the formula the real property ratio of aggregate assessed value to aggregate true value was in excess of 100% for each petitioner.

The county board promulgated the 1970 revised final equalization table on March 13, 1970. The board did not use the page 8 formula for revalued taxing districts in that table, hut assigned a ratio of 100% to each of them. With respect to districts that had not revalued, the county board used the state school aid table promulgated by the Director of the Division of Taxation pursuant to N. J. S. A. 54:1-35.1, in order to arrive at their respective ratios and true values. The result of not using the page 8 formula in the final table was to raise the aggregate true value of each petitioner from that shown in the preliminary table.

On April 9, 1970 petitioners appealed the revised final equalization table to the Division of Tax Appeals. The City of Clifton filed an answer and cross-petition on April 27, 1970. Meanwhile, on April 20 the county board of taxation held a meeting, on notice to all municipalities, and ratified and confirmed the final table.

The Division held a hearing June 4 and 12, 1970 on petitioners’ appeal and Clifton’s cross-appeal. Judge Con-very sat for the entire Division and eventually filed his report recommending that judgment be entered affirming the final equalization table for 1970. That report was approved by the Division and judgment entered affirming the table. We are in agreement with the Division’s determination, based on the reasons set out in Judge Convery’s findings and conclusions.

Eight of the ten municipalities that appealed to the Division prosecute the present appeal. They launch a two-pronged attack, claiming that (1) the county board erred in raising their valuations in the final table because it failed to give petitioners the required three days’ notice, as provided in N. J. S. A. 54:3-18, and (2) the county board did not treat each taxing district in the county uniformly, but discriminated against the revalued districts by assigning them a ratio of 100% while at the same time assigning to nonrevalued districts a ratio based on the Director of Taxation’s sales ratio study. This is characterized as arbitrary and capricious action, producing an unjust and inequitable apportionment of the inter-municipal cost of county government among the Passaic County taxing districts.

The county board frankly admits that it should have given the required three days’ notice of the proposed adoption on March 13, 1970 of the revised final equalization table, but failed to do so because the experienced employee entrusted with that duty was critically ill.

Petitioners claim that the April 20, 1970 meeting to ratify and confirm the final table did not and could not remedy the situation. The county board, they say, was without jurisdiction to act, because at that moment the matter was on appeal to the Division.

What was done here was unusual, but neither illegal nor invalid. Having inadvertently failed to give the municipalities notice of the March 13 meeting, the county board was not prevented from correcting its error merely because petitioners had appealed to the Division. Compare Handlon v. Belleville, 4 N. J. 99, 106 (1950); Paterson v. Division of Tax Appeals, 40 N. J. Super. 543, 546 (App. Div. 1956), and cases cited. Petitioners attended the April 20 meeting, were invited to address themselves to the final table, and took the position, restated here, that the county board lacked jurisdiction to proceed because of the pending appeal in the Division. None of the taxing districts made any effort to demonstrate that the revised final equalization table should not be ratified and confirmed.

Beyond this, the matter has been fully aired in the Division, where the basis for the data used was disclosed and the local representatives were given a fair opportunity to meet it. Cf. Little Ferry v. Bergen Cty. Board of Taxation, 18 N. J. 400, 403 (1955). All the answers and information necessary to a just determination by the Division — and presently by this court — appear in the record. Petitioners have failed to demonstrate the inaccuracy or inequity of the final table as it relates to each of them.

Turning to the discrimination question, we know that the purpose of equalization is to secure a fair distribution of tax burdens common to municipalities. Passaic v. Passaic Cty. Board of Taxation, 18 N. J. 371, 381 (1955). When a county tax board exercises its equalization function, that action is legislative or quasi-legislative in nature, the Legislature having delegated that function in lieu of its own direct apportionment of county taxes. Id. at 384. Further, a county board may, in the performance of the legislative equalization function, consult and rely upon a variety of data. Little Ferry v. Bergen Cty. Board of Taxation, above, 18 N. J. at 404. Any reasonable and efficient method may be adopted, for the Legislature has provided no specific plan or method for carrying out the equalization function. Woodbridge v. Middlesex Cty. Board of Taxation, 96 N. J. Super. 532, 536 (App. Div. 1970).

We see nothing wrong in the county board’s having decided to establish the ratio of each revalued and reassessed taxing district at 100% and, for the other taxing districts, to use the percentage established for that district by the Director of the Division of Taxation in his 1969 table of equalized valuations. The board’s action was, of course, entitled to the presumption of correctness, and that presumption could only be overcome by the production before the Division of sufficient evidence that was definite, positive and certain in quantity and quality. Perth Amboy v. Middlesex Cty. Board of Taxation, 91 N. J. Super. 305, 309 (App. Div. 1966). The Division, on appeal, has the same responsibility as the county tax board had in the first instance — and that is to determine whether the equalization table is in error and, if so, to correct the table. The Division did just that and determined that petitioners had not overcome the presumption of the correctness of the table. We will not interfere with the Division’s determination in the absence of an affirmative showing that it acted arbitrarily or unreasonably. Woodbridge v. Middlesex Cty. Board of Taxation, above, 96 N. J. Super. at 536.

The hard fact of this case is that the 100% ratio used for the revalued districts represents true value, and this was admitted by petitioners at the Division hearing. Moreover, limited sales ratio studies based on assessed valuations subsequent to the revaluations indicated that all of petitioners’ assessments were at just about 100%. There can therefore be no complaint insofar as the figure for each petitioner is concerned. Nor can petitioners complain about the figures used for taxing districts which had not revalued, for the school aid ratio prepared by the Director of Taxation has been approved by our courts as an equalization measure. Petitioners have merely shown that the county board utilized different methods and sources of determining the aggregate true values for the taxing districts of Passaic County. This the board was free to do, for all that was required of it was to carry out the equalization function in a reasonable and efficient manner.

In light of our determination, there is no point in discussing petitioners’ additional argument that the Division should have revised the Passaic County table by applying the page 8 formula to all districts.

Affirmed.


text:
    DEPARTMENT OF LAW AND PUBLIC SAFETY, DIVISION OF MOTOR VEHICLES, STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. GUSTAVOUS MILLER, JR., DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued March 29, 1971
    Decided June 17, 1971.

      Before Judges Goldmann, Leonard and Fritz.

      Mr. Philip L. Lipman argued the cause for appellant (Mr. Francis G. Reuss, of counsel).

      Mr. Remo M. Croce, Deputy Attorney General, argued the cause for respondent (Mr. George F. Kugler, Jr., Attorney General, attorney; Mr. Stephen Shillman, Assistant Attorney General, of counsel).
   The opinion of the court was delivered by

Goldmann, P. J. A. D.

Gustavous Miller, Jr., appeals from a determination of the Civil Service Commission affirming his removal as a motor vehicle officer by the Division of Motor Vehicles, Department of Law and Public Safety.

On January 3, 1968 Miller was served with a Preliminary Notice of Disciplinary Action notifying him that he was suspended pending a hearing and determination for violating Civil Service Rules 59a (“Neglect of duty”) and 59g (“Conduct unbecoming an employee in the Public Service”). Two specifications accompanied this notice, respectively charging that (1) between August 7 and October 3, 1967 Miller had accepted a sum of money from a representative of Robert Mazzacco in return for an agreement that he would not take enforcement action should he observe vehicles owned by Mazzacco to be in violation of motor vehicle statutes, and (2) on or about October 11 Miller accepted a sum of money from a representative of L. P. Excavating Corporation in return for a similar agreement with regard to that company’s vehicles observed by him to be in violation of the motor vehicle statutes.

Following a hearing the then Motor Vehicle Director found that the charges of violating Civil Service Rules 59a and 59g had been sustained and notified Miller that he was removed, effective at the close of business January 3, 1968. Miller appealed to the Civil Service Commission which, after a hearing, denied the appeal and affirmed his removal.

As to the first specification, the Commission found that Miller’s fellow officer, Bradway, had “propositioned” the truck owner for a bribe to avoid any report of motor vehicle violations, and that an employee had delivered $30, the agreed amount, to Miller on October 12, 1967 to give to Bradway for the purpose of effecting the agreement. (Miller happened to be passing by in an official ear and was stopped by the employee because he thought it was officer Bradway.) The Commission found that Miller’s knowledge of the purpose of the payment to him on behalf of Bradway was evidenced by the conversation he had with the employee: he is alleged to have said that “if he was Joe [Bradway], he would just give us tickets for not having flaps, horns or lights or something like that.” All that the employee said to Miller on the occasion in question was, “Just give this to Joe and thank him a lot.” The Commission said it was “incredible to believe he [Miller] would receive cash from a stranger without understanding the purpose of the payment or questioning it before agreeing to act as a conduit.”

With regard to the second specification, the Commission found that on October 9, 1967 Miller and Bradway were seated in a Division car when one Steffer, an L. P. company foreman, threw a $100 bribe on the front seat between the officers. (This was the second such payment on a $200 bribe Bradway alone had solicited sometime before. There was no proof Miller knew of it.) The Commission described this incident as follows: “Again, Mr. Bradway was more of the activist in negotiating the bribe but Mr. Miller was a knowing and cooperative conspirator.”

Predicated upon these findings of fact, described as totally involving Miller in the two bribery situations, the Commission concluded that he was guilty of the violations charged, and therefore affirmed his removal.

As noted, the Preliminary Notice of Disciplinary action informed Miller he was being charged with neglect of duty and conduct unbecoming an employee in the public service, in violation of the Civil Service rules. The specifications served to particularize the charges by detailing two occasions when Miller accepted a sum of money in return for an agreement not to take enforcement action against certain trucks found to be in violation of our Motor Vehicle Act. These were the only specific charges made, and the ones that had to be proved to the satisfaction of the Civil Service Commission.

There was no evidence whatever that Miller, either alone or in concert with another, had accepted or indicated he would accept money in consideration for his promise not to take enforcement action. Instead of finding defendant guilty or innocent of the specified charges, the Commission found that he had agreed to act as a “conduit” in one case, and was a “knowing and cooperative conspirator” in the other. Whatever validity may inhere in these conclusions, Miller was never charged with being a conduit for bribes, whether innocently or otherwise, or as one who had conspired with Bradway.

It is firmly established that an employee cannot legally be tried or found guilty-on charges of which he has not been given plain notice by the appointing authority, and the de novo hearing on an administrative appeal is limited to the charges made below. West New York v. Bock, 38 N. J. 500, 533 (1963). As we said in Orange v. DeStefano, 48 N. J. Super. 407, 419 (1958), where, as here, an employee entitled to notice and hearing before discharge is tried on specified charges, but is found guilty solely of other charges never specified nor actually tried before the original hearer or on appeal to the Civil Service Commission, the matter must be reversed.

Miller was notified he would be tried for accepting bribes. His defense was that he took no bribe or in any way participated in such an illegal activity. There was nothing in the case to alert him to the fact that he was being charged with acting as a conduit for bribe money intended for Brad-way, or that he had entered into a common scheme with Bradway. Adequate notice and an opportunity to prepare remains the key to proper administrative proceedings. 1 Davis j Administrative Law, § 8.05 at 530; § 7.03 at 413 (1958). There can be no adequate preparation where the notice does not reasonably apprise the party of the charges, or where the issues litigated at the hearing differ substantially from those outlined in the notice. It offends elemental concepts of procedural due process to grant enforcement to a finding neither charged in the complaint nor litigated at the hearing.

One cannot fault the Commission for looking upon Miller as less than a faithful employee. At the very least, he should have reported the two incidents described — the throwing of the $100 bill onto the front seat of the car where he and Bradway were seated, and the $30 handed him for transmittal to Bradway. It is beyond belief that Miller did not say something, or at least ask Bradway for an explanation, at the time of either or both incidents.

We vacate the Commission’s determination and remand the matter to the Division for a supplemental hearing on amended specifications. In our view defendant cannot argue collateral estoppel or res judicata upon such remand, for the agency is free to reconsider the whole ease on a new record where the court sets aside a determination on a single ground. 2 Davis, above, § 18.11 at 624. As was said in F. C. C. v. Pottsville Broadcasting Co., 309 U. S. 134, 145, 60 S. Ct. 437, 442, 84 L. Ed. 656 (1940), “an administrative determination in which is embedded a legal question open to judicial review does not impliedly foreclose the administrative agency, after its error has been corrected, from enforcing the legislative policy committed to its charge.” Cf. Rodale Press, Inc. v. F. T. C., 132 U. S. App. D. C. 317, 407 F. 2d 1252 (D. C. Cir. 1968) (remand for further argument on a new theory of the case).

We see no problem with relitigation, except as to the deaths of Bradway and Steffer, which occurred before the Commission hearings. Whatever part of their testimony before the Division may be deemed pertinent on the remand may be read into the record under Evidence 'Rule 63(3).

Kemanded for amended charges and specifications and a supplemental hearing. We do not retain jurisdiction.


author: Halpern, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. CLIFTON RICE, JR., DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued June 2, 1971
    Decided June 16, 1971.

      Before Judges Kilkenny, Halpern and Lane.

      Mr. Edward P. Hannigan argued the cause for appellant (Mr. Stanley C. Van Ness, Public Defender, attorney; Mr. Hannigan, of counsel and on the brief).

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

Halpern, J. A. D.

Defendant appeals from a judgment of conviction, entered on a jury verdict, charging him with the unlawful possession of heroin. N. J. S. A. 24:18-4. The narrow issue on appeal is whether the court erred in not suppressing the evidence seized as the result of an alleged unlawful arrest.

The only witness called by the State at the suppression hearing was Detective McCummings of the Newark Police Department. He testified that as the result of undisclosed phone calls received by the police pertaining to narcotics, he and Detective McNulty went to 114 Broad Street, Newark, New Jersey, to investígate. They had not obtained a search or arrest warrant. The critical portion of his direct and cross-examination testimony follows:

(Direct)
Q And when you got to 114 Broad Street, what, if anything, did you do?
A I went to the front of the ■— it’s in the basement, the front door, and my partner went around to the rear.
Q And when you were in the front, what, if anything, did you do?
A I knocked at the door.
Q As you knocked on the door, what happened?
A The gentleman, Mr. Cliff Rice, opened the door. I at this time identified myself as a police officer.
Q When you identified yourself as a police officer, was the door opened?
A It was opened, yes sir.
Q And as you identified yourself as a police officer, what, if anything, happened?
A I then entered the apartment with Mr. Rice and approximately three feet in the apartment I observed Mr. Rice with his left hand put a white object on a small bed that was in the apartment. I immediately picked up this object and found it to be one glassine envelope containing a white powder.
(Cross)
Q Now Officer McCummings, you say that you knocked on the front door and it was opened by Cliff Rice. Is that correct?
A Tes, sir.
Q And thereupon you identified yourself to him?
A Tes, sir.
Q And then what happened?
A As I entered the apartment, approximately two to three feet, Mr. Rice at this time placed a white object on a small bed that was in the apartment.
Q So that you had entered the apartment when you saw him place this object on the bed?
A Yes, sir.
Q Now, how did you enter the apartment?
A Through the door that Mr. Rice had opened.
Q Did he invite you into the apartment?
A There were no words that say come in.

It is clear from the quoted testimony that McCummings unlawfully entered the apartment, and that he was in a place where he had no right to be when he observed defendant put a white object (heroin) on a bed. Based on the record before us, McCummings did not have probable cause to enter the apartment to make an arrest or search. If probable cause for an arrest or search existed, he should have obtained an arrest or search warrant, since no emergency or other legal reason existed for not getting one. United States v. Ventresca, 380 U. S. 102, 85 S. Ct. 741, 13 L. Ed. 2d 684 (1965); Chapman v. United States, 365 U. S. 610, 614-615, 81 S. Ct. 776, 5 L. Ed. 2d 828 (1961). Since McCummings’ entry was improper, the arrest and search were invalid as the unlawful fruits thereof. Wong Sun v. United States, 371 U. S. 471, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963); Johnson v. United States, 333 U. S. 10, 68 S. Ct. 367, 92 L. Ed. 436 (1948).

The State admits that if McCummings unlawfully entered the room before he saw the narcotics, the arrest and search would be invalid. However, it argues the trial judge could conclude that defendant by his silence “impliedly consented to the officer’s entry into the apartment,”' thus validating the arrest and search. We disagree. At best, the entry was permitted in submission to authority. Johnson v. United States, supra, at 13, 68 S. Ct. 367.

Where the State relies on a defendant’s consent to enter his home to make a search without a warrant, it has the heavy burden of proving by clear and positive evidence that the consent was unequivocally, intelligently and voluntarily given. Bumper v. North Carolina, 391 U. S. 543, 548-549, 88 S. Ct. 1788, 20 L. Ed. 2d 797 (1968) ; State v. King, 44 N. J. 346, 352 (1965); United States v. Page, 302 F. 2d 81 (9 Cir. 1962); State v. Moore, 156 N. W. 2d 890, 893 (Iowa Sup. Ct. 1968). See also to the same effect, State v. Orr, 93 N. J. Super. 140 (App. Div. 1966), where Detectives McCummings and McNulty were involved in a similar situation.

While we need not go so far in this case, it has been held that where the State claims a constitutional right has been voluntarily waived it must show defendant knowingly abandoned it. See State v. King, supra, 44 N. J. at 352. In confoxmity therewith, other jurisdictions have required the State to show defendant was warned ox advised that he need not permit an entry and search. See Johnson v. Zerbst, 304 U. S. 458, 464, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938); Schoepflin v. United States, 391 F. 2d 390, 398 (9 Cir. 1968), cert. den. 393 U. S. 865, 89 S. Ct. 146, 21 L. Ed. 2d 133 (1968); Rosenthall v. Henderson, 389 F. 2d 514, 516 (6 Cir. 1968); United States v. Thompson, 356 F. 2d 216 (2 Cir. 1965), cert. den. 384 U. S. 964, 86 S. Ct. 1591, 16 L. Ed. 2d 675 (1966); Wren v. United States, 352 F. 2d 617 (10 Cir. 1965), cert. den. 384 U. S. 944, 86 S. Ct. 1469, 16 L. Ed. 2d 542 (1966); Cipres v. United States, 343 F. 2d 95, 97 (9 Cir. 1965), cert. den. 385 U. S. 826, 87 S. Ct. 58, 17 L. Ed. 2d 62 (1966); United States v. Barton, 282 F. Supp. 785, 787-788 (U. S. D. C.-Mass. 1967).

The State requests that if we conclude the record is unclear on “whether the officers were in a place where they had a Tight to be when they observed the contraband in plain view,” we should remand the motion to suppress for additional testimony. There is no merit to the request. Firstly, the record is clear that McCummings unlawfully entered the home. Secondly, no sound reason exists in this ease to give the State a second chance to bolster its proofs. In fact, at the time of oral argument, the prosecutor was unable to tell us what additional proofs he could submit. Presumably it presented all its proofs at the suppression hearing, and on appeal our function is- to review the trial judge’s determination based on the evidence before him, giving due weight to his opportunity to see and hear the witnesses.

-The order denying the motion to suppress and the judgment of conviction are reversed.


author: Lane, J. A. D.

text:
    SHERRY ANN QUAGLIATO, ROCCO QUAGLIATO AND CHARLOTTE QUAGLIATO, PLAINTIFFS-APPELLANTS, v. NATHAN BODNER, DEFENDANT-RESPONDENT. SHERRY ANN QUAGLIATO, ROCCO QUAGLIATO AND CHARLOTTE QUAGLIATO, PLAINTIFFS-APPELLANTS, v. HAROLD ZEMANY, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Submitted June 2, 1971
    Decided June 10, 1971.

      Before Judges Kilkenny, Halpern and Lane.

      Mr. Merman J. Ziegler, attorney for appellants.

      Messrs. Conant, Halberstadter & McGuire, attorneys for respondent Nathan Bodner (Mr. Edward J. McCreedy, of counsel).

      Messrs. Oppenheim & Oppenheim, Attorneys for respondent, Harold Zemany, submitted Statement In Lieu of Brief.
   The opinion of the court was delivered by

Lane, J. A. D.

Plaintiffs appeal upon leave granted from an order dated August 14, 1970 that “the above captioned matters be severed and tried separately as to all issues for the purpose of trial in the Superior Court, Law Division, Union County,” and from an order dated October 19, 1970 denying a rehearing.

On July 7, 1967, Sherry Ann Quagliato, under 21 years of age at the time of the accidents, was operating an automobile which was struck in the rear by an automobile owned and operated by Harold Zemany. On September 12, 1967, Sherry Ann Quagliato was the operator of an automobile which was struck at an intersection by an automobile owned and operated by Nathan Bodner. In March 1969 separate suits were instituted against each defendant to recover damages for her injuries sustained in each accident. By motion filed July 29, 1969, plaintiffs moved to consolidate the two actions “as to damages only upon the grounds that they involve common injuries to plaintiff which may prove difficult to apportion or allocate to each particular defendant.” Although notice of the hearing date of the motion was given to the attorney for each defendant, no appearance was made in opposition to the motion. An order dated August 19, 1969, was signed by Judge: Milton A. Teller providing “that the within causes of action be and they are hereby consolidated for trial on the question of damages only. The question of liability in each case will be tried separately after which trials, and in the event plaintiff is successful in both cases, the question of damages will be tried jointly.”

On June 24, 1970, Bodner filed a notice of motion that he would apply to the court on July 3, 1970, “for an order vacating the order of the court of August 19, 1969, consolidating the above matters, and make application for them to be severed and tried separately as to all issues.” The motion was heard by a different judge, and the relief sought was granted by the August 14, 1970 order. After the entry of this order, application was made by plaintiffs to the Law Division for a rehearing of the motion ánd, alternatively, for “a stay on the trial of the issues of damages in each of the within causes pending the resolution of all issues of the liability in the trial of the two cases.” The judge who signed the August 14, 1970 order filed a letter-opinion denying the application. An order dated October 19, 1970, was entered providing that “the applications for the consolidation of the within causes of action and the application for a stay of the trial of the issues on the question of damages be and they are hereby denied.”

In interrogatories answered by Sherry Ann Quagliato in the Zemany action she set forth that her injuries in part were “cervical sprain, whiplash type injury; acute sprain and strain of cervical spine; acute lumbar sprain.” Allegedly she was confined to a hospital from July 8 to July 34, 1967, and from September 13 to September 16, 1967.

In interrogatories answered by her in the Bodner action she set forth that her injuries in part were “cervical sprain, whiplash type injury;” “aggravation of lower back and upper back conditions from accident of July 7, 1967.” She alleged that she was confined to a hospital from September 13 to September 16, 1967.

In her deposition plaintiff stated that the injuries she sustained in both accidents were to the same areas of her body and that her complaints following each accident were similar. The physician who had treated her since July 8, 1967, testified on deposition that the injuries and complaints arising from each accident were to the same area of plaintiff’s body. He said that he could not separate the injuries sustained in the second accident from those injuries sustained in the first accident but that there was an aggravation to the injuries sustained in the first accident as a result of the second accident. He testified, “I cannot at all divide any portion of her pain today and make it attributable to the first injury or the second injury.”

We note that Judge Eeller’s order of August 19, 1969, consolidating the damage issue, was not specifically vacated by the August 14, 1970 order. It seems clear to us, however, that the judge signing the August 14, 1970 order intended it to vacate Judge Eeller’s earlier order. We will so consider its effect.

We strongly disapprove of the procedure followed by Bodner and concurred in by Zemany. If they were dissatisfied with Judge Eeller’s order, the proper procedure would have been to apply for leave to appeal under B. 2:2-4 or to move before Judge Eeller to vacate the order under B. 4:50-1. Bodner’s motion directed to the August 19, 1969 order was filed June 24, 1970, and was to be heard July 3, 1970. Judge Eeller was sitting in the same Division, in the same county, throughout July 1970. We should not have to say that under these circumstances a motion for relief pursuant to B. 4:50-l should properly have been brought on for hearing before Judge Eeller, the judge who signed the order sought to be vacated. We see no reason for a different judge consenting to hear defendant’s motion. The fact that the motion was not actually moved for hearing until August 14, when Judge Eeller was on vacation, does not alter our opinion. The hearing should have been adjourned until his return from vacation. The circumstances would have been different if Judge Eeller had no longer been sitting in the Law Division in Union County or if an emergency existed. We pass this procedural deficiency and go to the merits.

Apparently the second judge based his decision upon either B. 4:50-1 (a) or B. 4:50-l(f). B. 4:50-1 (a) provides that the court may relieve a party from an order for “mistake, inadvertence, surprise, or excusable neglect.” There was before the court an affidavit by the former attorney for Zemany. This affidavit states that that attorney was aware that plaintiffs’ motion to consolidate was listed for argument. He alleges that he decided the night before the return day of plaintiffs’ motion that he would appear in court the following day to oppose the motion hut that when he appeared the motion had already been heard. The attorney continues to say in his affidavit, “I then advised Mr. Ziegler, by letter, that I was not happy with the consolidation and felt that the matter was improperly consolidated and that the prior order should be rescinded.” That letter was dated August 21, 1969. A motion for rehearing or an application for leave to appeal could have been promptly filed.

There was no mistake, inadvertence or surprise. The only possible justification under B. 4:50-1 (a) would be excusable neglect on the part of the attorney. By no stretch of the imagination can the attorney’s tardiness on the day the motion was listed be considered excusable neglect.

There was some indication during the argument on defendant’s motion before the second judge that he felt Judge Eeller’s order was inadvertently entered and, therefore, should be vacated under B. 4:50-l(f) which provides that the court may relieve a party from an order for “any other reason justifying relief from the operation of the judgment or order.” If the second judge granted the relief under that provision, he would have had to conclude that Judge Eeller had entered the original order through an erroneous interpretation of the law. However, to obtain relief Horn an order under B. 4:50-l(f), one must show that the enforcement of the order would be unjust, oppressive or inequitable. Greenberg v. Owens, 31 N. J. 402, 411 (1960) (Jacobs, J., dissenting).

It appears from what is before us at this time that plaintiff sustained injuries to the same portion of her body as a result of two entirely separate automobile accidents. The facts are distinguishable from those in Hill v. Macomber, 103 N. J. Super. 127 (App. Div. 1968), only as to the interval of time between the two accidents. The reasoning of that opinion at pp. 136-137 is directly applicable. Consolidation of the issues of damages in this case flows logically from what we said there. A gross injustice could result to plaintiffs or to defendants if plaintiffs were compelled to try separately against each defendant the issue of damages. Cf. Ristan v. Frantzen, 14 N. J. 455, 461-462 (1954).

In Treanor v. B. P. E. Leasing, Inc., 158 N. W. 2d 4 (Sup. Ct. Iowa 1968), the court held that it was error to order the plaintiff to have separate trials against two alleged tortfeasors to recover damages for injuries sustained in two separate accidents less than two months apart where the plaintiff alleged that certain of the damages were “inseparable and indivisible.” The court stated:

As indicated in Meek v. Long, supra [258 Iowa 1309, 142 N. W. 2d 385, 387, 388], if after trial the evidence supports plaintiffs’ contentions, three verdicts would probably result, one against one defendant for those injuries shown to be solely attributable to him, another for those injuries shown to be solely attributable to the other defendant, and a third against both defendants jointly and severally for the injuries shown which could not with reasonable certainty be attributable solely to either. * * * Under proper instructions we are convinced the fact-finder is the proper party to make these determinations and assess these damages. [158 N. W. 2d at 7]

In that case the court permitted a consolidated trial not only as to damages but also as to liability. We are not to be understood to approve a consolidation as. to liability as well as damages where there are two separate accidents separated by an appreciable period of time. We fully subscribe to the Iowa Supreme Court’s holding as to the verdicts the jury should be instructed to return in the event both defendants are held liable in the separate trials on liability. The finding as to whether, or what portion of, the injuries are indivisible is properly left to the jury. The Michigan Supreme Court in Maddux v. Donaldson, 362 Mich. 425, 108 N. W. 2d 33 (Sup. Ct. 1961), stated:

When the triers of the facts decide that they cannot make a division of injuries we have, by their own finding, nothing more or less than an indivisible injury, and the precedents as to indivisible injuries will control. [108 N. W. 2d at 37]

See also Sutterfield v. District Court, 165 Colo. 225, 438 P. 2d 236 (Sup. Ct. 1968); Schwartz v. Swan, 63 Ill. App. 2d 148, 211 N. E. 2d 122 (App. Ct. 1965) (cert. or appeal denied or dismissed); Watts v. Smith, 375 Mich. 220, 134 N. W. 2d 194 (Sup. Ct. 1965); 4 Restatement, Torts, § 879, p. 446 (1939); 1 Harper and James, The Law of Torts, § 10.1, p. 692 (1956); Prosser on Torts, § 42, p. 247, 255 (3d ed. 1964); Id., § 44, p. 260; Annotation, “Apportionment of Damages Involving Successive Impact By Different Motor Vehicles,” 100 A. L. R. 2d 16 (1965).

Clearly, Judge Feller’s order consolidating these actions for trial “on the question of damages only” was entirely correct. Assuming a proper application had been made for relief from that order under B. 4:50-l(f), it was erroneous to grant the motion.

The orders of the Law Division dated August 14, 1970, and October 19, 1970, are vacated. The matters will proceed to trial as expeditiously as possible under Judge Feller’s order of August 19, 1969, and if both defendants are found to be liable, as supplemented herein.

Costs will be taxed on this appeal for the plaintiffs against both defendants.


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

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. BRUCE KING, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued June 1, 1971
    Decided June 10, 1971.

      Before Judges Conford, Kolovsky and Carton.

      Mrs. Rita L. Bender, designated counsel, argued the cause for appellant (Mr. Stanley C. Van Ness, Public Defender, attorney).

      Mr. Wilbur H. Mathesius, First Assistant Prosecutor, argued the cause for respondent {Mr. Bruce M. Schragger, Mercer County Prosecutor, attorney).
   The opinion of the court was delivered by

Conford, P. J. A. D.

After a trial of defendant-appellant King and co-defendants Allen and Clark, the latter were acquitted and King convicted of the murder of Adam Mueller and Joseph Beismann in Trenton on the late evening of March 13, 1969. The jury recommended life imprisonment on each conviction, and King was sentenced to terms of life imprisonment on each, to he served consecutively.

# sji % jj: ijí % # %

[Here the court discusses the testimony of various witnesses to the case]

The most important State witness was Beverly Peters, a/k/a Vevlyn Jackson. Between 11 p.m. and midnight on the night of the murders, Miss Peters was standing on the corner outside Sid’s Bar. After about 20 minutes, she saw two white men emerge from Skopa’s Bar across the street. As the men were crossing the street to the corner diagonally opposite the corner on which Miss Peters stood, she saw Glover [a companion of the defendants] and defendants King, Clark and Allen emerge from Skopa’s Bar. The four ran up to the two white men, and King stuck his gun up at the older man’s (Beismann’s) head. The younger man (Mueller), upon seeing this, fled down Brunswick Avenue towards Sanford Street. King thereupon took his gun from Beismann’s head, and ran after Mueller; he shot at the fleeing Mueller, apparently twice, and Miss Peters saw Mueller fall down in the street. At this, Clark, Allen, and Glover ran into Sid’s Bar, while King took Beismann down Old Rose Street. Miss Peters did not see what King did with Beismann, because she also went into Sid’s Bar at that point. Miss Peters’ boyfriend, Curtis Jackson, the father of her son, was in Sid’s Bar at the time. Miss Peters told Jackson about what she had seen, and Jackson suggested that they leave because Jackson had been in trouble with the law, as had Miss Peters, and he was afraid that she would be called as a witness in this matter. Jackson and Miss Peters left Sid’s Bax and went home together.

3; $ 4? 3*

[Here the court discusses additional testimony of witnesses in the case.]

The principal ground of appeal is the contention that the court erred in allowing the State at the conclusion of its case, over strenuous defense objection, to adduce in evidence Miss Peters’ testimony given before the Grand Jury on April 29, 1969 and a statement she gave the police March 14, 1969 which in substance were to the same effect as her testimony to the trial. (The case was tried from November 5 through November 13, 1969). In so doing, the trial judge accepted the State’s contention that it was entitled to bolster Miss Peters’ credibility because her cross-examination was designed to suggest to the jury that her testimony was a recent fabrication. See Evidence Rule 20 which states: * * No evidence to support the credibility of a witness shall be admitted except to meet a charge of recent fabrication of testimony.”

Prior to the promulgation of the evidence rules in 1967 this State allowed somewhat broader latitude in supporting by prior consistent statements the credibility of a witness assailed on cross-examination.

“It is well established that previous statements of a witness are ordinarily not admissible to strengthen and corroborate his testimony, but the general rule is that when a witness has been impeached by an attack upon Ms credibility, tending to show that bis testimony is a fabrication of recent date or is colored, distorted, and falsified through the influence of some strong personal motive, his statements made on occasions so near to the event involved, and so long anterior to the litigation that the effect of his speech could not have been foreseen, are admissible.”

State v. Neiman, 123 N. J. L. 341, 344 (Sup. Ct. 1939), aff’d o. b. 124 N. J. L. 562 (E. & A. 1940).

See also State v. Kane, 9 N. J. Super. 254, 262-264 (App. Div. 1950).

The version of Bule 20 first adopted by the Supreme Court (September 14, 1964) but which never became effective, read, in pertinent part:

“* *■ * evidence to support the credibility of a witness shall be admitted except to meet a charge of willful falsification of testimony.”

The change to the now-existing version was accomplished at a conference of the Legislative Commission serving pursuant to SCR 28 (1966) and SCR 1 (1967) with the Supreme Court. See Report of the Rules of Evidence Study Commission (1967) p. 7.

The express limitation in Evidence Bule 20 to charges of "recent fabrication” should, in the light of the prior history of the rule and the evolution of Rule 20 as it now stands, ordinarily call for adherence to that formulation as the only criterion for admissibility of prior consistent statements of the witness assailed to support credibility. However, we find that the cross-examination of the witness Peters by the several defense counsel here was such as to permit the trial court properly to determine that it met the criterion of charge of recent fabrication.

In ruling in favor of admission of the evidence the trial court relied largely upon the following portions of the cross-examinations of Miss Peters:

“Q. Isn’t it true you made up this story to help protect [your boyfriend] Curtis?
A. Protect him from what?
Q. Wasn’t he one of the people there?
A. No.
‘ * * * * * * ‘ *
Q. Do you recall talking to Mr. DeFusco on October 28th [eight days before^the trial] in front-of Detective Vorhees, Detective Fitzgerald down in:the County Jail?
A. Who?
Q. You were talking to Thomas DeFuseo, don’t you remember, down in the County Jail on October 28th?
A. Yes.
Q. Of this year?
A. Yes.
Q. Do you recall telling him that Curtis told you to give the police a statement to keep him out of trouble or he would get in trouble?
A. Yes.
Q. He is the one that told you to make this story up, didn’t he?
A. I told him that because my probation officer gave me ---.
Q. Did you make that statement?
A. I told him that because my probation officer gave me three months in jail and I said I wasn’t going to witness.
Q. Did you tell him that story that Curtis told me to get him out?
A. When I got in Court I was going to change my statement to say that Curtis did it,
Q. Is that what you told him?
A. I told the man that.
THE COURT: In response to any of those questions that you wish to explain, go ahead, try to explain to him now.
A. That I told Mr. Fitzgerald that I wasn’t going to witness in this case because I was mad at him for getting me three months. I wouldn’t have got three months for violation of probation. He said I was being spiteful and ignorant. I said I didn’t care, if they had to go to jail it wouldn’t be for me and I won’t witness for that.
Q. Did you tell him that, Thomas DeFuseo, that Curtis told you to give the police a statement, a story?
A. I didn’t tell him that, I said I was going to say that in Court and they said why would you change your statement. I said because I am doing three months, because if I have to do three months, let me do it on my own.
Q. Who decided you should make the trigger man King, you or Curtis?
[objection sustained]
Q. Now, when you were interviewed in the County Jail by Detective DeFuseo and Officer Fitzgerald and Voorhees, is it correct that you told them that you weren’t going to be a witness?
A. Yes.
Q. Is it correct that you told them that Curtis had told you to make this statement?
A. I said that I was going to tell a lie when I came over here and he said I would be ruining my life for pur jury [sic], I would get a lot of time for that and I said, well, I am going to tell a lie anyway.
Q. Didn’t you tell them that Curtis had told you to tell this story?
A. I would say Curtis told me to say it.
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Q. Now, Miss Peters, on certain circumstances, would you tell a lie?
A. Yes.
Q. Is that true?
A. You would too.
Q. Under certain circumstances would you lie under oath?
A. No, I am not lying now.
Q. Did you just testify in answer to Mr. Turner’s questions that you were going to oome here and lie and you were going to do it anyway f
A. That is what I told them.
Q. Would you lie to protect someone that is close to you?
Mr. Phelan: Objection.
THE COURT: Sustained.
Mr. Schroth: She testified she said she was going to come here and lie.
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Q. In fact, you are lying now, aren’t youf
A. No. I had already made my statement. I said I was going to lie in Court and change my statement.” (Emphasis by court.)

A “charge” of recent fabrication can be effected through implication by the cross-examiner as well as by direct accusation of the witness. In fact that is the usual way in which the charge is made. See State v. Kane, supra (9 N. J. Super., at 263-265). Defendant argues that the cross-examination did not bring out any recent fabrication by Miss Peters but only suggested that her testimonial version of the affair was a lie from the time of the very first statement of the witness to the police and that it was contrived by her to protect Jackson. We think the trend of the cross-examinations, especially toward their conclusion, went considerably beyond that. The allusion to the threat by the witness to the detectives a week before trial that she intended to lie at the trial, coupled closely with the outright assertion of the examiner that she was in fact lying in implicating King, could fairly have been held by the trial judge to have conveyed the impression to the jury that the witness had recently decided to lie to involve King. Eor present purposes, it is the impression the cross-examiner makes upon the jury in the heat of the trial rather than what an appellate court would discern from a coldly analytical study of the testimony which must control review of the somewhat discretionary exercise of judgment made by the trial judge in the matter. We find no error.

Beyond the foregoing, a finding of prejudice would be dubious even were the admission of the evidence technically erroneous. The cross-examination was fairly rife with implications that Miss Peters had given statements to the police inculpating King.

Moreover, the other unexceptionable evidence adduced by the State, direct and circumstantial, of King’s guilt was overwhelming.

[The court here considers and rejects other grounds of' appeal.]

Judgment affirmed.


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

text:
    NEWARK INSURANCE COMPANY, ETC., PLAINTIFF-RESPONDENT, v. CONCORD INSURANCE COMPANY, ETC, DEFENDANT-APPELLANT AND MARY A. FENNELLY, ET AL., DEFENDANTS.
    Superior Court of New Jersey Appellate Division
    Argued May 24, 1971
    Decided June 14, 1971.

      Before Judges Sullivan, Collester and Labrecque.

      Mr. John J. Kielty argued the cause for appellant (Mr. Vincent D. Enright, Jr., of counsel; Messrs. Harth & Enright, attorneys).

      Mr. Stewart G. Pollock argued the cause for respondent (Mr. Gary G. Algeier, on the brief; Messrs. Schench, Price, Smith & King, attorneys).

   The opinion of the Court was delivered by

Sullivan, P. J. A. D.

This appeal involves a question of automobile liability insurance coverage.

On April 29, 1966 Concord Insurance Company (Concord) issued, a three-year automobile liability policy insuring John Purpura as owner of a motor vehicle.

Purpura was acquainted with Joseph L. Eennelly (Eennelly), who lived with his paternal grandparents in Mountain Lakes. Newark Insurance Company (Newark) had issued its automobile liability policy covering a motor vehicle owned by Eennelly’s grandmother. This policy extended apparent coverage to Eennelly while operating a motor vehicle since he was a resident of the same household as the insured.

On October 22, 1966 Purpura, driving his own car, attended a party at the Eennelly home.

There was evidence that, while at the party, Purpura became sick and intoxicated and was unable to drive. After some persuasion, Purpura agreed to allow Eennelly to drive him home and handed over the ear keys. Another car from the party followed to bring Eennelly back. Eennelly was 17 years of age and unlicensed at the time, although he had driven vehicles, including Purpura’s car, on previous occasions.

While driving the Purpura car, Eennelly was involved in a collision with two other cars. Several lawsuits resulted.

Concord denied that its policy covered Eennelly and refused to defend him on the ground, originally, that Eennelly was operating the Purpura car without the consent of the owner. Later it added the ground that its policy extended coverage to persons driving with the permission of the insured only if “duly licensed to operate an automobile,” and that Eennelly was unlicensed at the time of the accident.

As a result of Concord’s refusal to defend Eennelly, Newark undertook his defense in the several lawsuits and filed answers on his behalf. Newark then commenced the instant suit for a declaratory judgment seeking a determination that Concord was liable to defend Eennelly under its policy issued to Purpura and pay any judgments recovered against Eennelly up to the policy limit.

At trial there was conflicting evidence as to whether Purpura had given permission to Eennelly to drive Purpura’s car. However, the trial judge found that such permission had in fact been given, and we are satisfied that the credible evidence supports this! finding.

The trial court also held that the Concord policy provision which extended coverage to persons driving the automobile with the authorized permission of the named insured providing they were “duly licensed” drivers was void as against public policy. Judgment was entered adjudicating that Concord was the primary carrier and must assume the defense of Eennelly .in the pending law suits.

On this appeal Concord argues that the clause in its automobile liability policy limiting coverage to “duly licensed” drivers is not against the public policy of this State, and it has been so held in this State in Sneed v. Concord Ins. Co., 98 N. J. Super. 306 (App. Div. 1967).

We conclude that Sneed cannot be read to give unqualified approval to the “duly licensed” driver clause in question. Sneed dealt with a liability policy written in 1963, involved an accident which occurred on May 15, 1963, and actually held that the insurance carrier was estopped from denying coverage. The court did consider and reject the contention that the clause violated the public policy expressed in the August 22, 1966 directive issued by the Commissioner of Banking and Insurance which restricted exclusionary clauses or endorsements in automobile liability policies to two specified categories. In holding that the directive was inapplicable, the court noted that the Sneed policy was issued in 1963 and stated that it was not called upon to express an opinion as to the effect of the directive in any other context. The court was not asked to, and did not, consider whether the clause ran afoul of the requirements of the Motor Yehiele Security-Responsibility Law, N. J. S. A. 39 :6 — 23 et seq., and the public policy expressed therein.

It is undisputed that the policy issued to Purpura by Concord was for the purpose1 of providing him with the coverage required by the Motor Vehicle Security-Responsibility Law. A policy furnished as proof of financial responsibility under the act must provide liability coverage to the insured “and any other person using * * * such motor vehicle with the express or implied consent of the insured * * The act does not state that coverage thereunder for persons using a motor vehicle, with the consent of the insured driver may be restricted to duly licensed drivers. Consequently, the Purpura policy must be construed to furnish the coverage required by N. J. S. A. 39:6-46 (a) and the restriction in question declared invalid. Selected Risks Insurance Co. v. Zullo, 48 N. J. 362 (1966); Tantum v. Hurley, 107 N. J. Super. 511 (App. Div. 1969); Kish v. Motor Club of America Ins. Co., 108 N. J. Super. 405 (App. Div. 1970). Once it has been shown that permission to operate the motor vehicle had been given, the operator is covered by the owner’s liability policy, here the Concord policy. The trial court properly held that Concord must assume and take over the defense on behalf of Joseph Eennelly in the several law suits growing out of the accident in question.

Affirmed.

       Actually, under the terms of the Goncord policy (IV) even the named insured would not be covered while driving if he was not “duly licensed.”


author: Per Curiam.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. WILLIE GEAR, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued June 7, 1971
    Decided June 14, 1971.

      Before Judges Goldmann, Leonard and Fritz.

      Mr. David L. Horuvitz argued the cause for appellant (Mr. Sheldon C. Schulman, on the brief).

      Mr. Gerard J. DiNicola, Salem County Prosecutor, argued the cause for respondent.
   Per Curiam.

Defendant was indicted for possession of lottery slips (N. J. S. A. 2A:121-3), found guilty by a jury and sentenced to a State Prison term of 1-2 years and fined $1,000. The appeal was filed and bail continued immediately after sentence was pronounced.

The single argument advanced is that it was error to permit Detective McManus, who participated in defendant’s apprehension and arrest, to testify as to tests he had made with water-solnble paper before trial and to perform a demonstration with such paper in the presence of the jury. The basis of this argument is that the witness, could not say whether the paper he used was similar to that allegedly used by defendant.

Detective Becker testified that when he approached the car defendant had been driving and in which he sat, the doors were locked. After Becker had identified himself defendant reached for a water-filled plastic container on the floor of the car and immersed some papers he had, on which figures were written, in the water. Becker testified that the figures he saw were consistent with numbers play. He took defendant into an adjacent house where, after briefly talking with Detective McManus, all three returned to the car.

McManus testified he picked up the container, removed the lid and saw papers that were disintegrating. However, they were still intact enough for him to identify them as representing numbers play. McManus said he attempted to remove the papers but found they became like paste to the touch. He then tried to pour the papers into his hand, but they continued to break up.

At this point in the trial the prosecution requested permission to conduct a test, using water-soluble paper with numbers written on it, the purpose being to show the ultimate result when the paper was placed in water. The defense objected and the jury was excused while the objection was argued. Essentially, defense counsel contended that the State would have to show that the paper being used was identical to the paper found in the container — the same argument advanced here. The obvious reply on the prosecution was that since the paper was self-destructing, it was impossible to determine its manufacturer or particular quality, and so the State should be allowed to use a water-soluble paper that previous tests had shown would react in identical fashion to the paper originally placed in the container by defendant at the time of the arrest.

McManus was then permitted to testify before the jury that he had seen water-soluble paper demonstrated before and had made tests in his office to determine just what happened with such paper. In every case the results were the same as when he tried to recover the paper from the container at the scene of the arrest: the paper would break up in his hand, flake, become sticky and pasty, and disintegrate completely when he attempted to remove it. After a brief cross-examination the judge ruled that he would allow the demonstration to proceed, whereupon McManus left the stand and placed water-soluble paper, on which numbers had been written, into a jar filled with water. The jury then filed past the jar to see what happened. Some 2)4 minutes after placing the paper in the jar McManus tried to remove the paper and it dissolved in his hand. The 2)4 minutes approximated the time Becker testified it took to bring McManus to the car.

McManus was not presented as an expert witness, nor did he attempt to give expert testimony. The only purpose óf his testimony and demonstration was to show, as the prosecution stated, that “there exists a paper that will dissolve when placed in water.” Eor this there was no need of testimony as to the exact ingredients and chemical composition of the paper defendant had tested or that used in the demonstration. The demonstration was obviously for the purpose of being helpful to a clear understanding of the detective’s testimony. See Evidence Buie 56. McManus had said that defendant possessed lottery slips on water-soluble paper. By showing the jury the use of such paper he fulfilled the requirement that the demonstration must be substantially the same as that described in his testimony. 2 Wharton, Criminal Evidence (12 ed. 1955), § 684 at 645. See, generally, 2 Underhill, Criminal Evidence (5 ed. 1956), § 517; 29 Am. Jur. 2d, Evidence, § 818 at 908; Annotation, 76 A. L. R. 2d 354 (1961).

A demonstration of the type here under attack lies in judicial discretion and may be justified because it tends to enlighten the jury on an important point. State v. Foulds, 127 N. J. L. 336, 343-344 (E. & A. 1941). As the court there said, “caution and prudence should govern in each instance, depending upon the circumstances and the character of the demonstration. It is impossible to lay down a formula that will govern in every case.” Cf. State v. Harris, 1 N. J. Misc. 526, 528 (Sup. Ct. 1923), aff'd 100 N. J. L. 184 (E. & A. 1924). The testimony and demonstration in the present case were necessary and proper in order to corroborate what the detectives said had happened to the papers defendant placed in the container of water when he was apprehended.

Affirmed.