author: Grossman, J. C. C.

text:
    WILLIAM KINGSLEY, ACTING DIRECTOR, DIVISION OF TAXATION, DEPARTMENT OF THE TREASURY, STATE OF NEW JERSEY, PLAINTIFF, v. WES OUTDOOR ADVERTISING COMPANY, A CORPORATION OF NEW JERSEY, DEFENDANT.
    District Court, Ocean County-
    Argued June 4, 1969
    Decided June 18, 1969.

      Mr. T. Robert Zochowshi, Deputy Attorney General, for plaintiff (Mr. Arthur J. Sills, Attorney General, attorney).

      Mr. Alfred A. Faxon, III, for defendant (Messrs. Hartman, Schlesinger, Manuel & 8chlosser, attorneys).
   The opinion of the court was delivered by

Grossman, J. C. C.

(temporarily assigned). This is an action commenced in the Ocean County District Court by the acting director, New Jersey Division of Taxation, for the collection of statutory penalties. Defendant is a corporation engaged in the business of providing outdoor advertising for customers. Plaintiff contends that defendant erected and maintained a number of outdoor advertising structures in Ocean County without permits, in violation of the provisions of N. J. S. A. 54:40-50 el seq.

The complaint is in eight counts. The first seven counts allege the illegal erection and maintenance of ten outdoor advertising structures over varying periods of time. The eighth count demands reimbursement to plaintiff for the expense of removing four of said structures, together with a penalty in the amount of twice the cost of removal, pursuant to N. J. S. A. 54:40-57.

After trial the court found plaintiff had proved its causes of action as to all structures, save two, in counts one and four. In addition, the court found the actual charge of $2,000 for removing four structures paid by plaintiff to another outdoor advertising company was totally unreasonable. It concluded that $1,000 would not have been unreasonable and proceeded to enter judgment on behalf of plaintiff on the eighth count in the sum of $2,030 — $1,000 plus the statutory penalty and a sales tax of $30.

At the same time, the court sought to assess the penalties in connection with the remaining five counts. N. J. 8. A. 54:40-65 provides for penalties of not less than $50 nor more than $200 a day for each violation. Each day of violation is declared to be a separate offense. Considering that the actions of defendant were in flagrant disregard of the statute, the court imposed penalties of $100 per day for each violation. The total for all violations contained in the five counts amounted to $57,200, or 572 days of separate infractions. Together with the judgment for the eighth count, the total came to $59,230.

Defendant objects to the entry of judgment in this amount, contending that the county district court lacks jurisdiction to enter judgment in any amount in excess of $1,000. It cites N. J. 8. A. 2A :6-34, the pertinent portion of which reads as follows:

“(a) Every action of a civil nature at law * * * and every action to recover any penalty imposed or authorized by any law of this State, where the debt, balance, penalty, damage or other matter in dispute does not exceed, exclusive of costs, the sum or value of $1,000.00 * * * shall be cognizable in the county district courts of this State.”

Defendant argues that the county district court is a court of limited jurisdiction, the limits of which have been fixed by the Legislature at $1,000 in penalty actions. This is a penalty action; therefore, plaintiff cannot recover more than $1,000 in total penalties. The court does not agree with this argument.

This action was commenced in the county district court by virtue of N. J. S. A. 54:40-67. It provides:

“Penalties set forth in this act shall be sued for by and in the name of the director and shall be recoverable with costs. Every county district court and municipal court shall have jurisdiction to enforce the provisions of this act. Any proceeding for a violation of this act may be brought in the county or municipality where the violation occurs or where the violator resides, has a place of business or principal office.”

Thus, there appears to be a conflict between the jurisdictional provisions of the two acts. Which statute should control?

Every authoritative sign post points to N. J. S. A. 54:40-67. R. R. 7:13-1 declares that the procedure for collection of statutory penalties by a summary civil proceeding shall be in accordance with said rule in any court upon which jurisdiction is conferred by the statute imposing the penalty. Furthermore, the Penalty Enforcement Act, N. J. S. 2A :58-2 refers to the statute imposing the penalty to determine which court may have jurisdiction to hear the action. Finally, there is the established principle that where there is a seeming conflict between a general statute (N. J. S. 2A :6-34) and a specific statute (N. J. S. A. 54:40-67) covering the subject in a more definite way, the latter shall prevail. Goff v. Hunt, 6 N. J. 600 (1951).

However, there is more apparent than real disparity between these two acts. Both can be read together to make perfect sense and harmony. N. J. S. A. 54:40-65 creates penalties of $50 - $200 a day for each violation, each day to be considered a separate offense. When two sections later the Legislature conferred jurisdiction upon the county district court to hear these penalty actions, it could hardly have meant only those violations not exceeding five days by any one person. Such would have defeated the clear intent to prosecute violators swiftly and effectively, spelled out by reading the act as a whole. The only sensible conclusion is that the Legislature meant what it said when it provided that each day was to be a separate violation, and consequently a separate cause of action.

Defendant concedes that plaintiff could have instituted 512 separate suits in the county district court, each calling for penalties of under $1,000. These, of course, could be consolidated for trial. If that could be done, it must be conceded that plaintiff could have brought an action with 572 separate counts.

“One of the fundamental objectives of our judicial system under our State Constitution (1947) and the rules of court is to avoid the delays and wasteful expense of a multiplicity of litigation resulting from the splitting up of a controversy.” Rego Industries, Inc. v. American Mod. Metals Corp., 91 N. J. Super. 447, 454 (App. Div. 1966).

Imagine the absurd and horrendous result of 572 suits by the State of New Jersey against any individual. Such a procedure would be unthinkable. Therefore, if it is conceded that reason must prevail over form, so that one action could have included 572 counts, surely those counts could be further digested into fewer counts for the sake of brevity and sanity. Defendant does not claim that it was misled or prejudiced by the combining of these claims into fewer counts.

It is the opinion of this court that as to the first seven counts, each day’s violation constituted a separate cause of action. "Cause of action” has been defined as the "fact or facts which establish or give rise to a right of action, the existence of which affords a party a right to judicial relief.” Levey v. Newark Beth Israel Hospital, 17 N. J. Super. 290, 293-94 (Cty. Ct. 1952). In this case the Legislature has provided that each day’s violation is a separate offense; therefore, a separate cause of action. Plaintiff must prove that defendant was in violation each and every day. It is not a continuing offense. That being so, there were 572 separate causes of action, each under the jurisdictional limit of $1,000. As to the eighth count, there were four signs removed, each of those being a separate cause of action, despite their joinder in one count in the pleadings. Since the cost and penalty as found by the court as to each did not exceed $1,000, these matters were within jurisdictional limits.

Any other result would have unreasonable and bizzare consequences. The only other court in which plaintiff could have commenced this action would have been a municipal court. N. J. S. A. 54:40-67. Since there is no jurisdictional limit imposed by statute on that court, presumably it could have entered judgment in the same or greater amount without objection. Moreover, a vengeful plaintiff could institute some complaints in one court and some in the other, forcing defendant to suffer the tortures of multiple litigation. It is interesting to note that the statute creating the general jurisdiction of municipal courts does not even mention penalty actions. N. J. S. A. 2A :8-l et seq. Again, one must look to the special statute creating jurisdiction, in this case N. J. S. A. 54:40-67, rather than the general one.

From any view, if sense and reason are to guide our trial procedure, the court must reject defendant’s argument. Consequently, defendant’s motion to limit the judgment to $1,000 is denied. Judgment will be entered in the sum of $59,230, together with costs to be taxed, in favor of plaintiff and against defendant.


source: Caselaw Access Project

author: Kolovsky, J. A. D.

license: Public Domain

text:
      FRANK E. PAIGE, PLAINTIFF-APPELLANT, v. RED TOP, INC., DEFENDANT-RESPONDENT, AND RUBIN B. WHITE, ET AL., DEFENDANTS.
    Superior Court of New Jersey Appellate Division
    Argued May 26, 1969
    Decided June 26, 1969.

      Before Judges Goldmann, Kolovsky and Carton.

      Mr. Stanley W. Greenfield argued the cause for appellant.

      Mr. Jerry M. Finn argued the cause for respondent (Messrs. Goldlerger, Siegel & Finn, attorneys).
   The opinion of the court was delivered by

Kolovsky, J. A. D.

Plaintiff Paige, a passenger in a taxicab owned by Eed Top, Inc. and driven by White, was injured on July 16, 1965 when the taxicab collided with another automobile.

Paige instituted this personal injury negligence action against Bed Top, White, and the driver and owner of the other automobile. The latter cross-claimed for property damage against Bed Top and White. At the close of the testimony and before summation, the trial court granted Bed Top’s motion to dismiss the action as against it. The jury found that the collision was attributable solely to White’s negligence and awarded plaintiff Paige damages of $40,000 and $900 to the owner of the other car.

The matter is before us on plaintiff’s appeal from the dismissal granted Eed Top.

Eed Top was the holder of a license issued by the City of Newark permitting it to operate its taxicab upon the streets of that city. By lease dated August 15, 1964 between Eed Top as lessor and White as lessee, Eed Top leased and rented its “Taxicab No. 7” to White “for the conveying, transporting and carrying all persons in and about the streets of the City of Newark, New Jersey, together with the fares, charges and profits of said taxicab at a daily rental of $10.00,” to be paid each day in advance.

The lessor agreed to make all necessary repairs and replacements. The lease was terminable by either party on three days’ notice and would immediately terminate if the lessor ceased to be a member of the Newark Twentieth Century Taxicab Association. The agreement further provided that the lessee was to be deemed an independent contractor, and

“that he is not accountable for the fares collected nor subject to the control and direction of the Owner, except that he will operate the taxicab in accordance with the rules and regulations of the Newark Twentieth Century Taxicab Association and the ordinance of the City of Newark, New Jersey.”

Assignment or subletting without the lessor’s written consent was prohibited, as was the employment by the lessee of any person to drive or operate the taxicab. The lessee agreed not “to suffer any act to be done which may cause a forfeiture of the franchise, permit or license of said taxicab” and also to pay Eederal, state and municipal taxes. Einally, the agreement stipulated that the “Workmen’s Compensation Act shall not apply to either of [the parties] or this contract.”

In granting the dismissal as to Red Top, the trial court ruled that the relationship between- Red Top and White under their written agreement was that of lessor and lessee of an automobile, so that the controlling principle was that normally applicable to the situation where a bailor for hire of a vehicle has been sought to be charged with the negligence of his bailee, viz.,

“that in the absence of a showing of negligence by the bailor in renting to an irresponsible bailee, the bailor is not liable for the negligent use of the chattel by the bailee.” (Schimek v. Gibb Truck Rental Agency, 69 N. J. Super. 590, 592 (App. Div. 1961).

But the lease here was not merely the lease of an automobile; it was the lease of a taxicab, “together with the fares, charges and profits of said taxicab.” The applicable statute refers to a taxicab as an “autocab” and defines it as,

“[an] automobile or motor ear, commonly called taxi, engaged in the business of carrying passengers for hire which is held out, announced or advertised to operate or run or which is operated or run over any of the streets or public highways of this state, and particularly accepts and discharges such persons as may offer themselves for transportation from points or places to points or places within or without the state,” (R. S. 48:16-1).

“The right to operate a taxicab is a franchise.” Naseef v. Cord, Inc., 90 N. J. Super. 135, 140 (App Div. 1966), affirmed 48 N. J. 317 (1966). Operation of an automobile as a taxicab is limited by law to those who have obtained the requisite governmental permission to do so.

So, R. S. 48:16-2 provides:

“No autocab [taxicab] shall be operated along any street in any municipality until the owner thereof shall obtain the consent of the elective governing body or member thereof having control of the public streets in the municipality.”

Eurther, if the municipality has exercised the power granted it by N. J. S. A. 40:52-l(a) to adopt an ordinance to license and regulate “vehicles used for the transportation of passengers * * *,” one seeking to operate his automobile as a taxicab must also apply for and obtain the required license.

The lease itself recites that Eed Top is the holder of a “franchise, permit or license.” The lease was not only a lease of Eed Top’s automobile but also of its franchise, a special privilege to use the public streets for private profit granted by a governmental agency pursuant to statutory authority. 12 McQuillin, Municipal Corporations, § 34.07, p. 23; McCray v. Chrucky, 68 N. J. Super. 533 (Cty. Ct. 1961); Hart v. Seacoast Credit Corp., 115 N. J. Eq. 28 (Ch. 1933), affirmed 116 N. J. Eq. 573 (E. & A. 1934).

By execution of the lease, Eed Top gave White permission to use its franchise. Even if White be deemed in fact an independent contractor, as the lease says he is, Eed Top may not avoid liability to plaintiff Paige for White’s negligence in the exercise of that franchise.

As the Supreme Court said in Trautman v. Higbie, 10 N. J. 239, 244 (1952) and reiterated in Honey v. Brown, 22 N. J. 433, 439 (1956) :

“Where one operates a vehicle under a governmental franchise in the field controlled thereby he assumes liability for the acts done by others to whom he grants permission to use that franchise.”

Accord, 8 Am. Jur. 2d, Automobiles and Highway Traffic, § 568, p. 120; 41 Am. Jur. 2d, Independent Contractors, § 39, p. 802; see also Cox v. Bond Transportation, Inc., 53 N. J. 186 (1969); cf. Frank Martz Coach Co. v. Hudson Bus Transp. Co., 23 N. J. Misc. 342, 44 A. 2d 488, 491 (Sup. Ct. 1945); Karpinski v. Borough of South River, 85 N. J. L. 208, 211 (E. & A. 1913).

The rule is stated in Restatement, Agency, 2d, § 214, comment (6), as follows:

“b. Action illegal unless licensed. When a license is required for the performance of acts, one having a license who delegates performance of the acts to another is subject to liability for the negligence of the other. Thus, a trucking company doing ah interstate business requiring a license is liable for the negligence of an independent contractor whom it employes to do some of the work.”

Our conclusion that the common law rule makes Red Top liable to the taxi passenger Paige for the injuries caused by White’s negligent operation of the taxicab makes it unnecessary for us to determine whether such liability would in any event be imposed in favor of Paige by section 31.36.39 of the Newark taxi ordinance which provides:

“Every holder [of a taxicab license] shall he responsible for the operation of the vehicle for which the license has been granted regardless of the legal relationship between such holder and the driver of said vehicle,”

or whether the effect of the section is limited to the disciplinary action which may be taken by the municipality when a violation of the taxi license ordinance occurs.

Nor is there any need for us to pursue the issue as to the legality of the “lease arrangement” under the Newark ordinance, an issue which the Supreme Court has found it unnecessary to resolve as yet. See Licata v. Lulz, 48 N. J. 255, 260 (1966); but cf. Naseef v. Cord, Inc., 90 N. J. Super. 135, 140-143 (App. Div. 1966), affirmed on other grounds, 48 N. J. 317 (1966).

Red Top’s motion for dismissal should not have been granted. However, since it was, the verdict returned by the jury when Red Top was no longer a party to the action is not binding on it either as to liability or damages. 30A Am. Jur., Judgments, § 429, p. 480.

The order dismissing the action as to Red Top, Inc. is reversed and the cause remanded for a new trial of plaintiff’s action against it.


author: Per Curiam.

text:
    THE GUILD OF PRESCRIPTION OPTICIANS OF NEW JERSEY, INC., A NON-PROFIT CORPORATION OF THE STATE OF NEW JERSEY, THE SOCIETY OF DISPENSING OPTICIANS OF NEW JERSEY, INC., A NON-PROFIT CORPORATION OF THE STATE OF NEW JERSEY, AND ROBERT C. TROAST, PETITIONERS, v. STATE BOARD OF EXAMINERS OF OPHTHALMIC DISPENSERS AND OPHTHALMIC TECHNICIANS, RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued June 16, 1969
    Decided June 26, 1969.

      Before Judges Sullivax, Eoley and Lewis.

      Mr. Robert P. McDonough argued the cause for petitioners (Messrs. McDonough, Murray & Meeker, attorneys).

      Mr. Douglas J. Harper, Deputy Attorney General, argued the cause for respondent (Mr. Stephen Skillman, Deputy Attorney General, of counsel; Mr. Arthur J. Sills, Attorney General of ISTew Jersey, attorney).
   Per Curiam.

This matter comes before us on a petition for declaratory judgment under R. R. 4. :88-10. The petition challenges the validity of administrative Rule 37 adopted by respondent, State Board of Examiners of Ophthalmic Dispensers and Ophthalmic Technicians, a State administrative agency created under the act regulating the practice of ophthalmic dispensing and ophthalmic technicianry. N. J. S. A. 52:17£-41.1 et seq.

Rule 37 permits a licensed apprenticeship, for the purpose of ultimately qualifying as a licensed ophthalmic dispenser or licensed ophthalmic technician, to be served under a licensed ophthalmic dispenser or licensed ophthalmic technician, “or a physician or optometrist duly licensed to practice medicine or optometry in the the State of New Jersey who is qualified to train apprentices. * * *”

Petitioners charge that the portion of the Rule quoted above is invalid because it is contrary to the act which provides that a candidate for a license to practice ophthalmic dispensing or ophthalmic teehnicianry must have served a registered apprenticeship under the supervision of a licensed ophthalmic dispenser or licensed ophthalmic technician. N. J. S. A. 52:17R-41.9.

We find no merit in petitioners’ contentions. The act specifically exempts duly licensed physicians and optometrists from its provisions and must be read in harmony with the statutes regulating the practice of medicine and optometry. It is undisputed that a physician qualified in the field of ophthalmology and an optometrist may do their own ophthalmic dispensing and teehnicianry. No good reason appears why they may not have apprentices serve under their supervision in these fields.

It is to be noted that, except for a 17-month hiatus, the adoption of Rule 37 formalizes a long-standing administrative practice established contemporaneously with the enactment of the act in question in 1952 and continued to date. Such interpretation, particularly where initiated contemporaneously with the passage of the act being administered, must be accorded great weight on judicial review, and may not be lightly overruled or disregarded. Pringle v. N. J. Dept. of Civil Service, 45 N. J. 329 (1965).

A declaratory judgment will be entered upholding the validity of Rule 37.


text:
    IN THE MATTER OF THE GUARDIANSHIP OF R. G. AND M. G.
    Superior Court of New Jersey-Appellate Division
    Argued June 16, 1969—
    Decided June 26, 1969.

      Before Judges Contord, Kilkenny and Leonard.

      Mr. Charles F. Harris argued the cause for appellant (Messrs. Stark and Stark, attorneys).

      Mr. Eugene T. ürbamale, Deputy Attorney General, argued the cause for respondent Hew Jersey Bureau of Children’s Services (Mr. Arthur J. Sills, Attorney General of Hew Jersey, attorney).
   Per Curiam.

We agree with the Attorney General that the Mercer County Juvenile and Domestic Relations Court had jurisdiction to entertain the present proceedings to commit appellant’s children to the guardianship of the Bureau of Children’s Services under N. J. S. A. AO—15.

We also agree with the Attorney General’s well-developed demonstration of the unsoundness of appellant’s argument that in view of a prior award to him of custody of the children by the Chancery Division, as against the mother, R. R. 4:1114-1 dictates exclusive jurisdiction of this proceeding in the Superior Court. The practice rule implements only N. J. S. A. 9:2—18 et seq., concerning an “action to terminate parental rights” by “an approved agency.” It does not affect proceedings under N. J. S. A. 30:4<7-15 et seq., at least not where brought by the Bureau of Children’s Services, which is a supervising arm of the State, rather than “an approved agency,” as specified in B. B. 4:1114-1 and in N. J. S. A. 9 :2-18.

However, we granted leave to appeal in this matter from the making of an interlocutory order, entered under authority of N. J. S. A. 30 -AO-17, because that section, read with N. J. S. A. 30 AG-20, may be literally deemed to allow an interlocutory order on summary interlocutory hearing, on notice only to the Bureau of Children’s Services, which would have the same effect as a final order of commitment. That effect would include the termination of natural parental rights and the commitment of the child to the Bureau, with power in the latter to place the child for adoption. It is obviously unthinkable as a matter of fundamental fairness that a natural parent’s rights in relation to his children should be subject to being cut off, even to the extent of enabling their adoption by others without his consent, without affording him prior notice and an opportunity to be heard thereon. The Attorney General agreed at the argument that no such effect should be accorded the interlocutory order, here entered without notice to appellant or hearing him thereon, and he stipulated that the status of the children should remain in abeyance pending the final hearing of the matter by the court on notice to appellant.

Subject to the stated stipulation, the order is affirmed, and without costs.


author: Carton, J. A. D. Kolovsky, J. A. D.

text:
    GINO MIRAGLIA AND FAUSTO MIRAGLIA, BY THEIR GUARDIAN AD LITEM, ALBERT MIRAGLIA, AND ALBERT MIRAGLIA, INDIVIDUALLY, PLAINTIFFS, v. FRANK MIRAGLIA, DEFENDANT-RESPONDENT, AND ERNA J. GROTZ, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued April 28, 1969—
    Decided June 23, 1969.
    Kolovsky, J. A. D., dissented.

      Before Judges Goldmann, Kolovsky and Carton.

      Mr. Franhlin M. Sachs argued the cause for appellant (Messrs. McCarter & English, attorneys; Mr. Eugene M. Haring, of counsel).

      Mr. Robert J. Albergue argued the cause for respondent (Messrs. Albergue and McGovern, attorneys).
   The opinion of the court was delivered by

Carton, J. A. D.

This case involves the interplay of the collateral estoppel doctrine and the rules governing contribution between joint tortfeasors.

Two automobiles, operated respectively by Erna Grotz and Prank Miraglia, and travelling in opposite directions on Route 17, collided when the Grotz car was about to make a left turn across that road into a restaurant parking lot. Mrs. Grotz was alone. Gino and Pausto Miraglia were passengers in the Miraglia car.

Mrs. Grotz and Prank Miraglia filed personal injury actions against each other, each charging the other with negligence while denying any contributory negligence on their respective parts. The cases were consolidated for trial and the jury returned a verdict of no cause for action in both suits.

Gino and Pausto Miraglia, by their guardian ad litem, then brought a personal injury action against both drivers. Both drivers denied negligence and filed cross-claims against each other for contribution under the Joint Tortfeasors Contribution Act (N. J. S. 2A :53A-1 et seg.). Mrs. Grotz moved for summary judgment on her cross-claim for contribution, seeking a ruling that the judgment in the prior actions between Mrs. Grotz and Prank Miraglia established that each was negligent, thereby rendering Prank liable for one-half of any amount which might be recovered by Prank’s brothers against Mrs. Grotz. The motion was denied as premature.

The jury returned a verdict in favor of the passengers against Mrs. Grotz and a verdict of no cause for action against Frank. In answer to special interrogatories, the jury found that Mrs. Grotz was negligent while Frank Miraglia was not.

Judgment was then entered accordingly, including a judgment in Frank’s favor and against Mrs. Grotz on her cross-claim. During the course of the trial, the judge had denied a renewal of Mrs. Grotz’ motion that she was entitled to contribution as a matter of law.

She appeals from the judgment denying her cross-claim for contribution. She does not challenge the judgment in favor of the plain tiff-passengers which she has satisfied.

The gist of appellant’s contention — advanced under the doctrines of res judicata and collateral estoppel —■ is that the jury verdicts in the drivers’ reciprocal actions necessarily included a finding that Frank Miraglia’s negligence was a cause of the accident, thereby precluding either from litigating the question of negligence anew. Specifically, that finding of Frank’s negligence, she asserts, established Frank to be a joint tortfeasor and removed that issue from consideration iu the passengers’ later action. This must be so, she maintains, irrespective of the jury’s determination as to the passengers’ claim against the drivers.

Eesolution of the question posed requires that we consider first the nature of the right of contribution. Since that right is of statutory origin, the contribution claimant must, of course, show compliance with the statutory requirements of the Joint Tortfeasors Act, N. J. S. 2A :53A-1 et seq.

Section 3 provides, in pertinent part, as follows:

“Where injury or damage is suffered by any person as a result oí the wrongful act, neglect or default of joint tortfeasors, and the person so suffering injury or damage recovers a money judgment or judgments for such injury or damage against one or more of the joint tortfeasors, either in one action or in separate actions, and any one of the joint tortfeasors pays such judgment in whole or in part, he shall be entitled to recover contribution from the other joint tortfeasor or join tortfeasors for the excess so paid over his pro rata share * *

Prerequisite to relief under the act is a demonstration that the person seeking to enforce the right of contribution, as well as the one from whom contribution is sought, are joint tortfeasors. Section 1 of the act defines “joint tortfeasors” as “two or more persons jointly or severally liable in tort for the same injury to person or property, whether or not judgment has been recovered against all or some of them.” The right of contribution accrues under the statute when the injured third person has brought action and recovers judgment against one or more of the joint tortfeasors and the latter has paid the judgment in whole or in part.

The Supreme Court in Sattelberger v. Telep, 14 N. J. 353 (1954), described the contribution claimant’s right and the burden of proof east upon him:

“Under the statute, contribution is enforceable only against a joint tortfeasor as therein defined; and so, by the very nature of the right and the correlative obligation, it is incumbent on the contribution claimant in a case such as this to establish a common liability for the wrongful act, neglect or default made the basis of the judgment and the quantum of the damages ensuing from the joint offense. The plaintiff must prove that he and the defendant in contribution are in aequaU jure; he cannot prevail unless the injured person also had a cause of action for the tortious injury against the defendant called on for contribution. * * * The onus of proof of the common burden is on the plaintiff demanding the sharing of the burden.” (at p. 367).

See also Tino v. Stout, 49 N. J. 289, 294 (1967); Tomkovich v. Public Serv. Coordinated Transp., 61 N. J. Super. 270 (App. Div. 1969).

But it does uot follow that because the right of contribution accrues only after the injured third person has obtained a judgment against the alleged joint tortfeasors, resolution of the issues giving rise to that right may not occur prior to the injured party’s action. General principles of law applicable to other legal proceedings, including the doctrines of res judicata and collateral estoppel, are equally applicable in actions involving contribution. Yellow Cab Co. of D. C. v. Janson, 86 U. S. App. D. C. 38, 179 F. 2d 54, 19 A. L. R. 2d 1001 (1949).

The doctrine of collateral estoppel and the distinction between it and the related doctrine of res judicala find expression in the following quotation from Public Service Elec. and Gas Co. v. Waldroup, 38 N. J. Super. 419 (App. Div. 1955) :

“* * * It is a fundamental rule that facts and questions in issue in an action and there admitted or judicially determined are conclusively settled by a judgment entered therein, and such facts or questions become res judicata in all subsequent litigation between the same parties and their privies. Hancock v. Singer Mfg. Co., 62 N. J. L. 289 (E. & A. 1898) ; Middlesex Concrete, etc., Corp. v. Borough of Carteret, 35 N. J. Super. 226 (App. Div. 3955) — as to a related aspect of the same case, see 36 N. J. Super. 400 (App. Div. 1955), certification denied 19 N. J. 383 (1955), and 19 N. J. 384 (1955) ; 30 Am. Jur., Judgments, sec. 178; 50 C. J. S., Judgments, § 686. This is known as the doctrine of collateral estoppel or estoppel by judgment and is to be distinguished from the doctrino of res judicata, which is that in any action on a cause previously litigated by the same parties or their privies, a general judgment in the prior action is considered a finding against the party affected on all grounds that were or could have been raised therein. Kelley v. Curtiss, 16 N. J. 265 (1954) ; Middlesex Concrete, etc, Corp. v. Borough of Carteret, supra; 30 Am. Jur., Judgments, secs. 161-177, and eases cited therein.” (at pp. 425-426).

The passengers were not parties to the drivers’ actions against each other and they, of course, cannot be bound by any findings which were made in those actions. But each driver was a defendant to the other’s action (as well as a plaintiff in his own). Both were also adversaries on the cross-claims for contribution in the passengers’ suit. There was thus an identity of parties in those proceedings.

Was there a similar identity of issues in the two proceeding's as between the drivers so as to preclude either from litigating that issue again? A brief analysis of the nature of the actions compels the conclusion that the issues were essentially the same.

Two automobiles proceeding in opposite directions on the same highway collided head-on. In separate actions, which were consolidated for trial, each driver charged that the other was negligent in causing the accident, denied negligence on his own part, and asserted contributory negligence as an affirmative defense to the other action. The jury verdict denying recovery to both can rationally be explained only by the conclusion that both were found to be at fault. We must reject, as running counter to common sense, the suggestion that there existed the alternative possibility that the jury might have determined that the collision occurred without fault on the part of either.

The passengers’ action against the drivers involved the same accident and was grounded on the same charge of negligence. Prank Miraglia’s cross-claim, after denying his own negligence, prayed that in the event he was adjudicated guilty of negligence and the proximate cause of plaintiffs’ injuries, that defendant Grotz be held “solely [sic] responsible” and that she contribute under the Joint Tortfeasors Act. Grotz’ answer also sought contribution.

The common liability from which the asserted right of contribution sprang depended on the same proof of negligence. It is immaterial that the term “contribution” appears only in the second action. The fundamental question is whether the same determinative issue was litigated and decided in the prior proceeding. We are satisfied that there existed such an identity in this case. Compare Ettin v. Ava Truck Leasing, Inc., 53 N. J. 463 (1969), where the court concluded, after an examination of the prior proceeding, that it was impossible to tell the basis upon which the judgment was predicated.

When the injured passengers furnished proof that their injuries proximately resulted from the other driver’s negligence —• a further issue upon which the right to contribution also depended and which was resolved when the jury made awards to them — the essential elements of the right of contribution were demonstrated. National Farmers Union Property & Cas. Co. v. Fisher, 284 F. 2d 421 (8 Cir. 1960); Yellow Cab Co. of D. C. v. Janson, supra; Sisk v. Perkins, 264 N. C. 43, 140 S. E. 2d 753 (Sup. Ct. 1965).

Nor do we deem it significant that such a result may seem to permit an inconsistent verdict in a later action. Since the drivers had already fully litigated the issue of negligence, the policy of finality embodied in the doctrine of collateral estoppel dictates that this principle should apply as between themselves, whether or not there exist valid resaons for not applying them against third parties.

Inasmuch as the passengers did not also invoke the doctrine of collateral estoppel in the later action, we express no opinion on the interesting question whether the apparently inconsistent verdicts obtained by the passengers might have been avoided had they done so and moved for summary judgment on the question of liability. See B. R. DeWitt, Inc. v. Hall, 19 N. Y. 2d 141, 225 N. E. 2d 195, 278 N. Y. S. 2d 596 (Ct. App. 1967).

The leading opinion cited in support of such affirmative use of collateral estoppel is that of Justice Traynor in Bernhard v. Bank of American Nat'l Sav. & Trust Ass’n, 19 Cal. 2d 807, 122 P. 2d 892 (Sup. Ct. 1942), where he criticized the rule of mutuality as a reason for not doing so:

“The criteria for determining who may assert a plea of res judicata differ fundamentally from the criteria for determining against whom a plea of res judicata may be asserted. The requirements of due process of law forbid the assertion of a plea of res judicata against a party unless he was bound by the earlier litigation in which the matter was decided * * " He is bound by that litigation only if he has been a party thereto or in privity with a party thereto. * * * There is no compelling reason, however, for requiring that the party asserting the plea of res judicata must have been a party, or in privity with a party, to the earlier litigation.
No satisfactory rationalization has been advanced for the requirement of mutuality. Just why a party who was not bound by a previous action should be precluded from asserting it as res judicata against a party who was bound by it is difficult to comprehend. * * *” (19 Cal. 2d, at pp. 811-813, 122 P. 2d., at pp. 894-895; citations omitted)

Por a recent treatment of this problem, see Semmel, “Collateral Estoppel, Mutuality and Joinder of Parties,” 68 Colum. L. Rev. 1457, 1469 (1968); cf. Desmond v. Kramer, 96 N. J. Super. 96 (Law Div. 1967), where the court applies collateral estoppel to preclude a common carrier from relitigating the issue of negligence in a passenger’s action for personal injuries where it has already been adjudicated liable to 14 other passengers in prior actions.

Where the first action is brought by the passenger and he joins the alleged tortfeasors as parties and they cross-claim against each other, the perplexing problem of inconsistent verdicts largely disappears. If the passenger effects recovery against only one of the alleged tortfeasors and the other is relieved of liability, no problem of contribution arises. The reason is that proof of common liability of alleged joint tortfeasors — a necessary ingredient for a claim of contribution — has not been shown.

On the other hand, where the injured person recovers against both alleged tortfeasors and in the same action it is decided that neither tortfeasor is entitled to prevail as against the other, there is no necessary inconsistency. In such case, it has been held that the doctrine of res judicata applies and that one joint tortfeasor is entitled to a summary judgment for contribution against the other. McIntosh v. Chicago Express, 154 F. Supp. 385 (D. N. J. 1957). Compare Conway v. Mister Softee (Pa.) v. Mister Softee (Ill.), 91 N. J. Super. 179 (Law Div. 1966), affirmed 93 N. J. Super. 286 (App. Div. 1967), affirmed 51 N. J. 254 (1968), where the court commented upon the right of a tortfeasor against whom the injured party has obtained a judgment to bring a separate action against his alleged joint tortfeasor even though he failed to implead the other tortfeasor in the injured party’s action as a third-party defendant. See also, generally, Annotation, 24 A. L. R. 3d 318 (1969).

The right to invoke the application of the doctrine of collateral estoppel presupposes that certain prerequisites have been fulfilled. Among these is the necessity of a showing, from an examination of the record in the prior proceeding, that the issue involved has been fully litigated. On this basis courts have refused to apply the doctrine in cases where minor property damage claims are involved, where the parties are represented by their respective subrogation carriers and where the forum is one of limited jurisdiction. See Reardon v. Allen, 88 N. J. Super. 560, 572 (Law Div. 1965). The underlying policy here seems to be that it might be unfair to allow a judgment obtained under such circumstances to control the outcome of a subsequent, more serious, personal injury action. The per curiam decision in Reilly v. Dziamba, 90 N. J. Super. 325 (App. Div. 1966), is also distinguishable on this basis. An inspection of the record in that case discloses that the first suit was a county district court proceeding involving subrogation property damage claims to the vehicles of the two drivers. These cases illustrate the principle that the doctrine of collateral estoppel is not of automatic application, but must depend upon certain circumstances.

The judgment in favor of defendant Frank Miraglia and against defendant Erna J. Grotz on her counterclaim for contribution is reversed. The matter is remanded with direction that judgment be entered in her favor against defendant Frank Miraglia for one-half the amount of the judgments entered in favor of the plaintiffs upon her establishing that she has paid such judgments.

Kolovsky, J. A. D.

(dissenting). The Joint Tortfeasors Contribution Law (N. J. S. 2A:53A-1 et seq.), from which Grotz’ claimed right to contribution stems, provides in pertinent part as follows:

“For the purpose of this act the term ‘joint tortfeasors’ means two or more persons jointly or severally liable in tort for the same injury to person or property, whether or not judgment has been recovered against all or some of them.” (N. J. S. 2A:53A-1).
“The right of contribution exists among joint tortfeasors.” (N. J. S. 2A:53A-2).
“Where injury or damage is suffered by any person as a result of the wrongful act, neglect or default of joint tortfeasors, and the person so suffering injury or damage recovers a money judgment or judgments for such injury or damage against one or more of the joint tortfeasors, either in one action or in separate actions, and any one of the joint tortfeasors pays such judgment in whole or in part, he shall be entitled to recover contribution from the other joint tortfeasor or joint tortfeasors for the excess so paid over his pro rata share; * * *” (A. J. S. 2A:53A-3).

For appellant Grotz to establish her claimed right to contribution, it was necessary for her to show that the injuries suffered by the passengers in Prank Miraglia’s (Prank) auto resulted from Prank’s negligence, as well as her own. The only action in which that ultimate issue was posed and tried was that instituted by the passengers against Grotz and Prank. The jury there resolved that issue adversely to Grotz. . Grotz argues, however, and the majority agrees, that the trial court should have directed a verdict in her favor on her claim for contribution because at the consolidated trial of prior actions instituted by Prank and Grotz respectively against each other to recover for personal injuries and property damage, the jury returned verdicts of “no cause for action” as to each claim.

Concededly, the claim for contribution could not have been asserted in the actions brought by Grotz and Prank against each other; the right to contribution had not yet matured. N. J. S. 2A :53A-3; see also Sattelberger v. Telep, 14 N. J. 353 (1954). The principle of res judicata is therefore not applicable. Mazzilli v. Accident, etc., Casualty Ins. Co., etc., 26 N. J. 307, 313 (1958).

The majority concludes that the circumstances call for the application of the doctrine of collateral estoppel. They hold that the jury verdicts at the trial of the first actions conclusively established that the collision was caused by Prank’s negligence, as well as that of Mrs. Grotz, and that therefore both are to be deemed joint tortfeasors as that term is defined in the Joint Tortfeasors Contribution Law. I cannot agree.

The issues presented to the jury at the first trial were several. As far as the issues of negligence were concerned, the jury’s general verdicts of no cause for action could have been based on a determination either (a) that neither party had established by a preponderance of the evidence that the other was negligent or (b) that each had established that the other was negligent so that the respective affirmative claim of each was barred by his and her contributory negligence.

There is no finding, nothing in the record to show on which of these possible alternatives the general verdict was based. In the trial court and in her brief on appeal, Grotz contended, citing Kelley v. Curtiss, 16 N. J. 265 (1954), that the absence of such a showing is of no significance. She argued that since the jury’s verdict in the action brought by Prank against Grotz “could have been based either upon a finding of lack of negligence by [Grotz] or contributory negligence by [Prank] that verdict is determinative of both issues against [Prank]” and that therefore Prank’s negligence must be deemed conclusively established. The argument was bottomed on the following quotation from the opinion in Kelley v. Curtiss, supra, at p. 273 :

“The case against Curtiss having been submitted to the jury with instructions that he was entitled to a verdict of no cause for action if the jury found either that he was not negligent or that Mrs. Kelley was guilty of contributory negligence, the general verdict is to be considered as determining both grounds in Curtiss’ favor.”

But the view thus expressed in Kelley has been expressly disapproved; it is no longer the law in this State. Ettin v. Ava Truck Leasing, Inc., 53 N. J. 463, 480-481 (1969); see also Note, “Developments in the Law — Res Judicata,” 65 Harv L. Rev. 818, 845-846 (1952).

Under Ettin,
“if ‘the judgment might have been based upon one or more of several grounds, but does not expressly rely upon any one of them, then none of them is conclusively established under the doctrine of collateral estoppel, since it is impossible for another court to tell which issue or issues were adjudged by the rendering court.’ ”

So here, it is impossible to tell from the jury’s verdict of no cause for action in Prank’s action against Grotz whether it was based on a finding that he was eontributorily negligent or a finding that he had not proved that Grotz was negligent. Apposite is what was said in the quotation from Manard v. Hardware Mutual Casualty Company, 12 A. D. 2d 29, 207 N. Y. S. 2d 807, 809, set forth in Ettin (at p. 481) :

“In this situation, the judgment entered on the jury’s verdict cannot be made the basis of a collateral estoppel as to either of the grounds upon which it might have been based.”

To determine whether the doctrine of collateral estoppel is applicable, reference must be made to the record at the first trial. If that record —• here the general verdicts of no cause for action — is uninformative, then the doctrine may not be invoked. Going beyond the record and indulging in conjecture is impermissible.

As I read Ettin, it does not permit the approach adopted by the majority, which would make the application of the collateral estoppel doctrine depend on whether the court in the second action determines from an analysis of the physical aspects of the particular accident that it is more likely that the jury’s general verdict in the prior action was based on one rather than the other of two possible alternative grounds.

In my view, the trial court acted properly in refusing to apply the doctrine of collateral estoppel and in directing the jury in the passengers’ action to resolve the factual issue of whether Prank and Grotz, the defendants therein, were joint tortfeasors.

I would affirm.

      In certain factual situations inconsistent results may occur in any event. For example, where two passengers bring separate actions against the same defendant in different jurisdictions, one may recover a judgment and the other fail. Until a means is devised of compelling the litigation of all claims arising out of the same accident to be tried in one action, some such inconsistency is inevitable.


text:
    STATE OF NEW JERSEY, EX REL. FRANK LESLEY GOSNELL AND JAMES STEPHEN GOSNELL, BY THEIR GUARDIAN AD LITEM, DOROTHY C. GOSNELL SHOOK, PLAINTIFFS-APPELLANTS, v. ANN LUCY GOSNELL, ADMINISTRATRIX OF THE ESTATE OF FRANK H. GOSNELL AND AMERICAN SURETY COMPANY OF NEW YORK, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued March 6, 1989
    Decided June 28, 1969.

      Before Judges Gaubkin, Collester and Labkeoque.

      Mr. Timothy J. P. Quinlan argued the cause for appellants (Messrs. Plane, Tomar, Parles and Seliger, attorneys)

      Mr. Joseph II. Rodriguez argued the cause for respondents (Messrs. Brown, Connery, Kulp & Wille, attorneys; Mr. Charles A. Cohen, on the brief).
   Per Curiam.

Frank H. Gosnell was killed in an accident on January 7, 1959. At that time he was living with his wife, defendant Ann Lucy Gosnell (Ann) and their child John, born in October 1953 and thus not quite six years old. Decedent had been married to plaintiff Dorothy 0. Gosnell Shook (Dorothy) by whom he had two children, plaintiffs Frank, born October 1946, and James, born January 1948. Decedent had separated from Dorothy in 1950, their children remaining with her. lie never communicated with them nor contributed anything to their support thereafter. In March 1953 he obtained an uncontested divorce from Dorothy and married Ann. In 1956 Dorothy married Benjamin Shook. Frank and James were brought up by the Shooks but never adopted by Mr. Shook.

Ann insGtuted action against the tortfeasor for decedent’s death. We have not been supplied with the pleadings in that case but it seems to be agreed that the complaint did not disclose the existence of Frank and James. Ann says they were excluded because they were not considered dependents. The ease was settled for $67,000, obviously upon the basis that Ann and John were decedent’s only dependents. Ann was appointed administratrix of decedent’s estate, posted a $67,-000 bond for the faithful performance of her duties, with defendant American Surety Company as surety, and distributed the proceeds of the $67,000 settlement, one-third to herself and the balance to the guardian of John.

In June 1966, when Frank was almost 20 years old and James over 18, this suit was instituted against Ann and the surety demanding $29,777.76 as their share of the settlement (two-ninths of $67,000 for each) on the ground that they were dependents of decedent at the time of his death. They admitted that decedent had given them nothing after the separation in 1950 and had never been asked to do so, and they offered no proof that they or the Shooks were ever in need or looked to decedent for support. Those being the facts, the trial judge granted defendants’ motion for summary judgment. The judge said: “* * * from the stipulated facts, it is my conclusion they were not actually dependent and apparently received nothing and expected nothing.” Plaintiffs appeal. We affirm.

At the time of decedent’s death our Death Act, N. J. 8. 2A :31-4, provided that:

“The amount recovered in proceedings under this chapter shall be for the exclusive benefit of the persons entitled to take any intestate personal property of the decedent, and in the proportions in which they are entitled to take the same. If any of the persons so entitled were not dependent on the decedent at his death, the remainder of the persons so entitled shall take the same as though they were the sole persons so entitled. If all or none of the persons so entitled were then dependent on him, they shall all take as aforesaid.”

The parties agree that the statute contemplates actual as opposed to legal dependency — a condition to be found from the facts of the case, not merely from the existence of decedent’s legal obligation to support his minor children. However, plaintiffs contend that actual dependence is shown when (1) the claimant is a minor, (2) has no independent means, and (3) is unable to support himself through his own efforts, and the fact that the claimant is being supported by a stepfather or other person who has no legal duty to do so, is immaterial.

This argument may be valid in another context but we think it does not apply here. It might have merit in a situation in which children who had been and were being supported by a stepfather joined as plaintiffs in a death action with children who had been supported by decedent, and at the trial seek to prove their dependency (a) as an element of damage for which the tortfeasor should pay, and (b) as entitling them to share in the recovery. And their right to share would have to be considered under our present statute (as last amended by L. 1960, c. 194) by the trial judge in distributing the proceeds of a recovery from the tortfeasor by judgment or settlement. But here we have a situation in which (1) the death action was settled long ago, (2) upon the basis of the loss to the widow and one child, undisputably actual dependents, (3) the proceeds of the settlement have been distributed, (4) the new claimants do not claim against the tortfeasor but against the administrator and her surety, and, most important, (5) the trial judge did not have to speculate upon whether the claimants might some day need support, for Prank was of age and James nearly so on July 13, 1968 when the summary judgment was entered. Had these plaintiffs been joined in the death action, and had the trial of that action taken place in July 1968, Frank and James would not have been able to prove dependency. Or if the death had taken place after the 1960 amendment of the Death Act, and the case was settled, upon application to the trial judge for distribution of the fund, plaintiffs would have received nothing. We see no reason to apply a contrary rule here. In short, the passage of time has proved that plaintiffs were not actually dependents of decedent.

Plaintiffs rely heavily on Kolakowski v. Thomas Mfg. Corp., 88 N. J. Super. 478 (App. Div. 1965), certification denied 45 N. J. 595 (1965) and Santiago v. New Jersey Fireworks Mfg. Co., Inc., 88 N. J. Super. 495 (App. Div. 1965). However, those were workmen’s compensation and not Death Act cases. Furthermore, they were cases in which the children sought compensation from the employer and not from the other dependents or at their expense. As we said in Santiago: "[The father] has a legal and moral duty to support his child and the employer should not be privileged to avoid his responsibility to pay dependency benefits to the child merely because the father has not performed fully his obligation in that respect prior to the accident.” (At p. 500; emphasis ours.) It is axiomatic that the Workmen’s Compensation Act is to be liberally construed in favor of the worker and his family. The greater the number of dependents, the greater will be the weekly compensation, i. e., the percentage of decedent’s wages, but the mere fact that a child is accepted as a dependent does not necessarily mean that he will share equally with all the other dependent children. His share may be fixed by the judge of compensation at a figure less than his being a dependent has added to the compensation fund, so that the other dependents may actually benefit by his acceptance. The reverse was true under the Death Act in force when decedent was killed. Had plaintiffs proved their dependency, however slight, each of them, who did not need it, would have taken the same two-ninths of the award as John, who had no other means of support. The Death Act is not construed with the liberality of the Workmen’s Compensation Act, and in such cases the court should favor those completely dependent upon the deceased over those who had no reasonable expectation of any pecuniary benefit from the continuation of his life, and especially when the latter do not seek recovery from the tortfeasor but a share of what has been deservedly awarded to those truly dependent. Cf. Rust v. Holland, 15 Ill. App. 2d 369, 146 N. E. 2d 82, 67 A. L. R. 2d 739 (App. Ct. 1957).

In Kolakowski we held that the presumption of a child’s dependency is rebuttable. Even if there were such a presumption here, it was rebutted by the fact that plaintiffs never received, sought, expected or needed their father’s help. When claim is made by a child of tender years for the death of his parent, it is reasonable to assume, even if he is being supported by one who has no obligation to support him, that at some time before maturity he might have to seek the parent’s help. Here no such assumption is possible for the plaintiffs had reached maturity when judgment was entered and were not much younger when they started this action.

The judgment is affirmed. No costs.


author: Collester, J. A. D.

text:
    IN THE MATTER OF THE APPLICATION OF THE HAMILTON STATE BANK FOR A CHARTER FOR A BANK TO BE LOCATED AT THE NORTHWEST CORNER OF STATE ROUTE 33 AND SHADY LANE IN THE TOWNSHIP OF HAMILTON, COUNTY OF MERCER, AND STATE OF NEW JERSEY.
    Superior Court of New Jersey Appellate Division
    Argued April 7, 1969—
    Decided June 27, 1969.

      Before Judges Gaulkin, Collester and Labrecque.

      Mr. Peter P. Walsh, Jr. argued the cause for appellants (Messrs. Jamieson, Walsh, McCardell & Moore, attorneys).

      Mr. Sydney S. Souter argued the cause for respondent (Messrs. Souter and Scozzari, attorneys).

      Mr. Arthur J. Sills, Attorney General of New Jersey, filed statement in lieu of brief on behalf of respondent, Charles E. Howell, Commissioner of Banking and Insurance (Mr. Joel L. Sham, Deputy Attorney General, of counsel).
   The opinion of the court was delivered by

Collester, J. A. D.

This is an appeal from a decision of the Commissioner of Banking and Insurance which approved the application o£ the proposed Hamilton State Bank for a charter for a bank to be located in Hamilton Township, Mercer County. The appellants are the Hirst National Bank of Hamilton Square and the Yardville National Bank, both located in Hamilton Township.

The application for a charter by the Hamilton State Bank was made pursuant to N. J. S. A. 17:94-9. Attached to the certificate of incorporation were affidavits made by 48 incorporators setting forth the information required by the statute. Hearings upon the application were conducted pursuant to N. J. S. A. 17:94-11(1?) during which the appellants opposed the granting of a charter. At the conclusion of the hearings the Commissioner found that the interest of the public would be served by the establishment of the proposed bank and that conditions in the locality in which the bank would transact business afforded reasonable promise of a successful operation. He approved the issuance of a charter conditioned upon release by the incorporators of 20% of their subscriptions, which were to be sold to residents and business men of Hamilton Township at the same price paid by the incorporators.

Appellants raise three grounds of appeal: (1) the Commissioner erred in ruling that incorporators of the proposed new bank were not subject to cross-examination by the objectors; (2) the evidence presented did not support the decision, and (3) the Commissioner erred in barring the objectors’ right to examine into the possible interest of the applicant’s expert witness in the outcome of the hearings.

Our disposition of this appeal renders it unnecessary to consider appellants’ second point, because of our conclusion that, for reasons hereinafter expressed, the case must be remanded for additional testimony and new or amended findings.

At the outset of the hearings respondent’s certificate of incorporation, statutory affidavits of the incorporators, subscription agreements and biographical sketches of the 48 incorporators were received as exhibits. Thereafter, during the course of the hearings the objectors requested that the incorporators be produced for the purpose of examination and cross-examination on the facts set forth in the exhibits. They argued that they were entitled to ascertain through such examination whether the incorporators were the true and only parties in interest, whether they had any interest from a community viewpoint in organizing a new bank or were merely investing to profit from the stock, and if they intended to live up to their subscription agreements.

The Commissioner first directed that the incorporators be produced for examination. Eespondent then applied to this court for leave to take an interlocutory appeal from the ruling. The application was subsequently withdrawn when the Commissioner permitted supplemental affidavits to be filed by the incorporators setting forth, among other things, the affiant’s residence, the extent to which he was engaged in business in Hamilton Township, whether he had entered into an agreement to sell or dispose of the shares of stock for which he had subscribed, and his continued intention to accept and pay for the same. The objectors still insisted on the right to have the incorporators called as witnesses. The Commissioner then rescinded his previous order that the incorporators be produced and ruled that he would direct that they would be called only if just cause could be shown by the objectors that they were not true parties in interest, did not intend to pay their subscriptions, or had falsified their affidavits. He also indicated that the ruling applied if the objectors desired to cal] the incorporators as their own witnesses.

Appellants allege that the incorporators’ affidavits filed pursuant to N. J. S. A. 17:9A-9, the subscription agreements, and the biographical sketches necessarily serve as a basis for the Commissioner’s finding that all of the capital stock was subscribed for and would be paid as specified in the certificate of incorporation, and that no fees, commission or other compensation had been paid for the promotion of the bank or for the sale of stock. N. J. S. A. 17:9A-ll(j9). They argue that they are entitled to examine or cross-examine the incorporators on the facts set forth in the exhibits. They further argue that the ruling requiring them to show good and sufficient cause before the Commissioner would direct the incorporators to appear as witnesses, or permit the objectors to subpoena them, was unreasonable.

Respondent bank claims that the objectors had no right to cross-examine the incorporators and that the Commissioner’s ruling precluding such examination without first showing just cause to do so should be upheld. Respondent argues that N. J. S. A. 17 :9¿1-11 (U), which sets forth the criteria that the Commissioner shall follow, does not require the submission of affidavits of the incorporators; that the affidavits required by N. J. S. A. 17:9A—9 are merely a prerequisite to obtain a bearing, and that if the objectors had any basis in fact to challenge the contents of the affidavits, it was incumbent upon them to do so by presenting affirmative proof.

In deciding whether a charter should be issued to a proposed bank the Commissioner must make certain determinations and findings under N. J. S. A. 17:9A-1.1 (D), among which are:

“(4) that no fees, commissions, or other compensation have been paid for the promotion of the bank * * “ or for the sale of tile stock of the bank, * * and,
(5) that, in the ease of a bank, the entire capital stock has been subscribed for, and that each subscriber has undertaken in writing to pay in cash, * * * his proportionate share of the capital stock, surplus and reserve fund for organization expense * *

The affidavits required by N. J. S. A. 17:9R-9 provide that each incorporator shall set forth therein: (1) that no compensation has been paid, directly or indirectly, for securing subscriptions for or selling stock in the proposed bank, and that no promotion fees have been provided for or are contemplated: (2) a complete disclosure of all fees paid in organizing the bank and securing a charter; (3) that the incorporators are the true and only parties in interest, and (4) that the entire capital stock has been subscribed for and each subscriber has undertaken in writing to pay in cash his proportionate share of the capital stock, surplus and reserve fund for organization expenses.

We find no merit in respondent’s argument that the affidavits are a mere prerequisite to the Commissioner’s hearings. In fact this court has held that the certificate of incorporation of a proposed bank and the incorporators’ affidavits are sufficient, competent evidence to sustain the Commissioner’s findings. Re Application of Millburn-Short Hills Bank, 59 N. J. Super. 470, 474-475 (App. Div. 1959).

Moreover, we do not agree that if the objectors desire to challenge the truth of the facts contained in the affidavits, they are limited only to offering affirmative proof at the hearing. The affidavits are merely prima facie evidence. If the objectors suspected or had reason to believe that an incorporator was not a true party in interest but a mere “front” for other persons whose ownership of stock might be considered inimical to the establishment of a new bank, or that he had no intention of living up to his subscription agreement, or that compensation had been paid for the promotion of the bank or solicitation of subscriptions, then the right of cross-examination of the incorporator might well be the only method of ferreting out the truth.

In the instant case we hold that the objectors had the right to have the incorporators (or so many of them as were deemed essential) produced at the hearing to be examined and cross-examined as to the facts set forth in their affidavits and biographical sketches and all other matters relevant and necessary for the Commissioner to make a proper determination and findings as required by N. J. S. A. 11:9A-1J (D). The ruling excluding the right of such examination was erroneous.

Appellants also claim the Commissioner erred in denying their request that Herbert II. Smith, president of Herbert II. Smith Associates, and Dr. Howard Menand, one of the subscribing stockholders, be called as witnesses. Herbert II. Smith Associates prepared an economic feasibility study a,t respondent’s request which was admitted in evidence and Pobert G. Strong, a vice-president of the company, testified as an expert witness. Near the close of the hearings appellants offered proof in the form of corporate records to show that Dr. Menand was a stockholder and director of Herbert H. Smith Associates, a fact which had not been reported in his biographical sketch. They requested that Smith and Dr. Menand be produced as witnesses and examined on the issue of possible bias of the corporation in making its economic feasibility study. The Commissioner ruled that they would not be called unless the applicants first produced evidence that the economic feasibility study was not made in good faith, or that Dr. Menand influenced Smith or Strong, who made the report, to be biased in favor of respondent.

We believe that the Commissioner erred in his ruling. It is fundamental that the interest or bias of a witness is relevant- in evaluating his testimony. State v. Spruill, 16 N. J. 73, 78 (1954). Whether the economic feasibility study was the result of self-interest or bias in favor of respondent was a matter which the objectors should have been permitted to demonstrate through the examination of Smith and Dr. Menand.

The ease is remanded to the Commissioner to allow the introduction of testimony consistent with this opinion and thereafter to make new or aménded findings and conclusions. This court retains jurisdiction. Costs to abide the event.


text:
    WOODCLIFF MANAGEMENT, A PARTNERSHIP, PLAINTIFF-RESPONDENT, v. TOWNSHIP OF NORTH BERGEN, A TAXING DISTRICT OF THE STATE OF NEW JERSEY, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued May 19, 1969—
    Decided June 27, 1969.

      Before Judges Confoed, Kilkenny and Leonard.

      Mr. Nicholas 8. Schloeder argued the cause for appellant.

      Mr. Daniel Amster argued the cause for respondent (Mr. Robert Michelson, on the brief).
   Per Curiam.

Insofar as the judgment orders defendant to pay interest on refund of taxes due plaintiff for the tax years 1964, 1965 and 1966, we affirm. We approve the decision and supporting reasoning of Judge Pindar for the Law Division in 713 Co. v. Jersey City, 94 N. J. Super. 210 (Law Div. 1967), to the effect that where a taxpayer has secured a reduction of tax assessment before a review board and the municipality has unsuccessfully exhausted all appellate review thereof, the taxpayer is entitled to 6% interest on any consequently owing and unrefunded overpayment of taxes, to be computed beginning with a reasonable time after exhaustion of such appellate review and ending when payment of the refund is made. That principle was correctly applied here by the trial court for the tax years mentioned above.

However, in entering judgment for refund for the taxes, and interest thereon, for the tax year 1967, we think the trial court erred. The municipality had an undetermined appeal to the Division of Tax Appeals pending as to that tax year at the time judgment was entered below. The trial court disregarded that appeal on the basis that the appeal was without merit because the assessment for 1967 was mandatorily “frozen,” pursuant to N. J. S. A. 54:2-43 (commonly known as the “Preeze Act”), at the valuation fixed by the Division for the year 1966 in its adjudication of the appeals of the assessments for 196^1966, inclusive, heard jointly by that body. In effect, the trial court treated defendant’s 1967 tax appeal as so lacking in merit as to amount to a bad-faith delay in payment of the refund due plaintiff by virtue of the county board reduction. We think this approach was unjustified. Defendant was, for purposes of the present issue, entitled to prosecute its appeal to the Division to a determination on its merits in that agency. It could there conceivably argue, insofar as the Preeze Act is concerned, that the value of the property rose after the assessing date for the tax year 1966, or, as it asserts it intends to do, that the Preeze Act does not apply to the 1967 judgment for the reason that the 1966 judgment of the Division was itself the result of application by that body of the Preeze Act by automatically setting that year’s tax assessment at the adjudicated true value for the year 1964. If the Division agrees therewith, the 1967 assessment will be immune from freeze and open for determination on the merits on the proofs to be adduced. See Riverview Gardens v. North Arlington Borough, 9 N. J. 167 (1952). We of course imply no view as to the merits of either of such contentions when and if advanced before the Division.

We thus conclude that since defendant has not yet obtained a final appellate adjudication in respect of the amount of taxes legally payable to it by plaintiff for the tax year 1967, plaintiff has as yet no cause of action against it for refund of overpayment of 1967 taxes or interest thereon.

Judgment modified to set aside award for overpayment of 1967 taxes and interest; otherwise affirmed. No costs.


author: Conford, S. J. A. D. Kilkenny, J. A. D.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. LONNIE JOHNSON, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued June 16, 1969—
    Decided June 30, 1969.
    Kilkenny, J. A. D., dissented.

      Before Judges Coneord, Kilkenny and Leonard.

      Mrs. Miriam N. Span, Assistant Deputy Public Defender, argued the cause for appellant (Mr. Stanley G. Van Ness, Public Defender, attorney).

      Mr. Matthew J. Scola, Assistant Prosecutor, argued the cause for respondent (Mr. Joseph P. Lordi, Essex County Prosecutor, attorney).
   The opinion of the court was delivered by

Conford, S. J. A. D.

The substantial question here is whether a written confession given the police by defendant as to his participation in a gas station robbery on South Orange Avenue, Newark, was admitted in evidence erroneously because of the absence of timely warning to defendant of his rights as required by Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, 10 A. L. R. 3d 974 (1966). Defendant was convicted of the crime.

A preliminary hearing on admissibility of the confession in relation both to compliance with Miranda and voluntariness was held out of the presence of the jury. At the hearing Detective Bostic of the Newark police testified that defendant surrendered himself at police headquarters the evening of October 5, 1967, saying that he understood from his wife that detectives had been at the house looking for him “in connection with another crime,” i. e., other than the gas station robbery. He was promptly arrested for the other crime and remained in custody over night. The record does not indicate that he confessed to the other crime.

Bostic testified that on the morning of October 6, 1967, having received information that defendant was involved in the South Orange Avenue gas station robbery, he began an interrogation of him. Bostic’s first question to defendant, before giving him any of the Miranda warnings, was whether he knew anything about the holdup on South Orange Avenue. Defendant’s response was that he wanted to make a “clean sweep.” Thereafter Bostic informed defendant of his Miranda rights, and presented to him a written waiver of all such rights, which defendant signed. Thereupon, on further inquiry, defendant confessed his complicity in the robbery, the confession was put into written form, and defendant signed it.

The trial court overruled defendant’s objection to admission of the confession on the ground that it was obtained after the Miranda warnings were given; that the only effect of failure to give the warnings before the commencement of the interrogation was to prevent the State from introducing into evidence anything incriminatory said by defendant before the warnings were given and waiver obtained, but not to exclude anything said by defendant subsequent thereto.

Under the circumstances here present, we are firm that the trial court erred. The Miranda opinion itself states and emphasizes five or six times that the warnings must be given at the outset of any interrogation of a suspect of a crime in police custody. Our own Supreme Court says that the Miranda warnings must be given whenever a suspect is in custody and “is subjected to questioning.” State v. Barnes, 54 N. J. 1, 5-6 (1969). While violation of that enjoinder might not be fatal in relation to any nonincriminatory response to such interrogation made before the warnings, it clearly is fatal to the entirety of an ensuing confession if it is preceded by an incriminatory response elicited before the warnings are given and an effective waiver obtained from the suspect. This is what occurred here.

This situation is not comparable with State v. Barnes, supra, where the question was asked of a defendant, being sought for escape, present in a car with others, “Whose stuff is this ?”, in reference to some checks seen on the floor of the car. There defendant, who made an incriminatory response, was not at all a suspect of any crime related to the checks. The court stressed that the question did not focus “on any particular suspect.” (At p. 6)

Certainly Miranda will not stand the interpretation that the police need not give the warnings to a known suspect, as here, merely because the form of the interrogation is: “Do you know about the x robbery?” rather than: “We know you did the x robbery. Tell us about it.” The inherently compulsive effect of all custodial interrogation of a suspect is presumed, the purpose of the rule being prophylactic. Miranda, at p. 467, 86 S. Ct. 1602.

Defendant was a suspect of this particular crime when the interrogation began that morning. Bostic said so. When, on specific query concerning this crime, defendant said he wanted to make a “clean sweep” (undoubtedly meaning a “clean breast of it,” in common parlance), Bostic could have had little doubt that defendant was telling him he was involved in the crime. At the very least, that interpretation is, if not the only conceivable meaning of such a remark, a common and generally taken signification of it. The trial court did not find that this did not constitute self-incrimination, and we conclude it plainly did. Miranda applies regardless of the degree of self-incrimination evoked in violation of the rule. (At pp. 476-477, 86 S. Ct. 1602).

Once defendant, unarmed with the necessary warning of his rights, confirmed Bostic’s suspicions of his involvement in this crime with his first response to Bostic’s initial probe, defendant’s psychological defenses against full self-incrimination were down, contrary to the policy implicit in the very rationale of the Miranda rule, and the giving subsequently of the Miranda warnings could not have had the protective effect, as to this defendant, against unadvised self-incrimination envisioned by the United States Supreme Court in formulating the doctrine. Looked at another way, the full confession was tainted by tlie poisonous tree of the illegally accomplished initial, general self-incrimination by defendant, cf. Wong Sun v. United States, 371 U. S. 471, 487-488, 83 S. Ct. 407, 9 L. Ed. 2d 441 (1963), and the poison could not be purged by the later Miranda admonition to defendant. Defendant’s psychological capacity effectively to use the warnings, when given, against further self-incrimination, had been dealt a crippling blow as a result of the blanket incrimination effected without the warnings.

Since we think a reversal and a new trial must attend the foregoing conclusions, we need not deal with defendant’s other assertions of error, except to warn that the State must be careful not unjustifiably to refer to prior criminal involvement of a defendant where not offering to show a conviction relevant to credibility.

Iteversed and remanded for a new trial.

Kilkenny, J. A. D.

(dissenting). I do not agree with the majority’s holding that, under the facts herein, Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1603, 16 L. Ed. 2d 694, 10 A. L. R. 3d 974 (1966), requires a reversal of defendant’s conviction of robbery. In my view, the Miranda warnings were duly and timely given, under the circumstances, before defendant confessed his participation in the robbery. Accordingly, I would affirm the judgment of conviction.

There was ample proof that a robbery was perpetrated on October 3, 1967, at about 11 :45 p.m., at a gas station located at 347 South Orange Avenue, in Newark. The station attendant was robbed of about $100 in cash by a bandit who brandished a short-barreled revolver and demanded the turnover of the money. While expressing a desire not to kill one “of his own kind,” the robber pointed the revolver “right straight” in the victim’s face.

Two days later, police went to defendant’s home and told his wife that they wanted him to come to the police station to be questioned about “some other crime.” The wife told her husband and he voluntarily appeared at the station in connection with this other matter. He was not placed under arrest or accused of committing the South Orange Avenue robbery. On the morning of October 6, Detective Bostic, a police veteran of 12 years' and assigned to the bandit squad, introduced himself to defendant. The detective testified that he had some “information,” not otherwise specified, that defendant was “involved” in the robbery at 347 South Orange Avenue. He did not reveal the information to defendant, or how he might be involved, or accuse him of any participation in that robbery. Bostic then asked defendant only a single, general question, to wit:

“Do you have knowledge of any robbery on South Orange Avenue?”

No Miranda warnings preceded this first and single question.

Instead of giving a simple “yes” or “no,” which would have been a proper response to the question and not per se inculpatory either way, defendant volunteered the nonresponsive answer that “he wanted to make a clean sweep of everything.” At this point, before any other questions were asked and before defendant was permitted to make his “clean sweep,” he was given the four-fold warnings required under the Miranda rule. He persisted in his desire to make a “clean sweep,” waived his rights as recited in the preamble of the statement, and answered voluntarily the questions put to him by the police. He portrayed his role in the South Orange Avenue robbery as the driver of the get-away car. He named the two confederates with whom he planned the robbery and assisted in its commission.

While defendant at trial challenged the voluntariness of his written, signed and witnessed inculpatory statement, the trial judge determined preliminarily its admissibility as having been voluntarily made and the jury ultimately presumably resolved that it was voluntary, as evidenced by its verdict.

Miranda does not invalidate every answer to a police question unless the specified warnings are first given. To come within the rule, there must be a so-called “custodial interrogation.” This means that the questioning initiated by the law enforcement officers must have been after a person “has been taken into custody” or otherwise deprived of his freedom of action in any significant way. The Miranda rule is a reflection of the privilege against compulsory self-incrimination. But a person may waive his rights to remain silent and to be assisted by counsel at a custodial police interrogation, provided the waiver is made voluntarily, knowingly and intelligently. There was evidence of such a waiver in this case. There was evidence herein that defendant was fully advised of his rights before giving his statement to the police of the facts of his criminal participation.

As stated in Miranda:

“There is no requirement that police stop a person who enters a police station and states that he wishes to confess to a crime * * *. Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.” (384 U. S., at p. 478, 86 S. Ct., at p. 1630; emphasis ours)

When defendant was asked if he had “knowledge” of “any” robbery on South Orange Avenue, and “volunteered” that he wanted to make “a clean sweep of everything,” there was no compulsory self-incrimination. Miranda, as noted in the quotation above, does not require the police to stop a person who wishes to confess a crime. The police in this case did more than merely let defendant talk on. They stopped him from furnishing his “clean sweep” until after he had been fully warned as to his rights. That such a warning had not preceded the first general question and. defendant’s volunteered willingness to tell “everything,” the incriminating story after full warnings given would not and should not preclude the detailed questioning and answers that followed the warnings. After all, a promise to make “a clean sweep,” without more, would not per se support a conviction.

In State v. Barnes, 54 N. J. 1, 5 (1969), Justice Proctor pointed out that the rule in Miranda requires the four-fold warnings whenever a suspect is taken into custody and is “subjected to questioning.” He found in the Barnes case that the single question, “Whose stuff is this ?”, relating to checks on the floor of a car stopped by the police, was not a ease where defendant was “subjected to questioning” within the meaning of Miranda, so as to invalidate her admission that the checks were hers, even though no prior Miranda warnings had preceded the single question. There, as here, as Justice Proctor aptly observed:

“Most important, it was not the type of question which centered blameworthiness on the defendant.” (at p. 6)

As in the Barnes case and for the reasons therein expressed, the single, general question addressed to defendant in the prsent case, and his volunteered statement, not directly responsive to the posed question, clearly distinguish this case from the recent decisions in Mathis v. United States, 391 U. S. 1, 88 S. Ct. 1503, 20 L. Ed. 2d 381 (1968), and Orozco v. Texas, 394 U. S. 324, 89 S. Ct. 1095, 22 L. Ed. 2d 311 (March 25, 1969). In the words of Justice Proctor:

“In our efforts to protect a defendant’s essential privilege not to be coerced into self-incrimination, we cannot strain to bar as well those inculpatory situations which so clearly are not the product of inherently coercive police practices.” (54 N. J., at p. 8).

So say we in the instant case.

I agree with so much of the majority opinion as finds no substantial merit in any of the other grounds asserted by defendant in his argument for a reversal.

I favor affirmance of the judgment of conviction.

       The stated time sequence, which is not disputed by the State, is made clearer by Bostic’s testimony before the jury.


author: Labrecque, J. A. D.

text:
    JOEL ROGOFF, IRA EHRENKRANZ AND JACK P. DONIS, PLAINTIFFS-APPELLANTS, v. JAMES F. TUFARIELLO AND TOWN COUNCIL OF THE TOWN OF WEST ORANGE, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued April 7, 1960—
    Decided July 1, 1969.

      Before Judges Gaulkin, Collesteb and Labeecque.

      Mr. Saul A. Wolfe argued the cause for appellants (Messrs. Sholoff and Wolfe, attorneys).

      Mr. Max Sherman argued the cause for respondent Tufariello (Mr. Sherman and Mr. Barry M. Hoffman, on the brief).

      Mr. Louis Lando filed a statement in lieu of brief on behalf of respondent Town Council of the Town of West Orange.
   The opinion of the court was delivered by

Labrecque, J. A. D.

Plaintiffs, residents and taxpayers of the Town of West Orange, sought in this action in lieu of prerogative writs to set aside the granting of a variance by defendant Town Council of West Orange to defendant Tufariello. They appeal from an adverse judgment.

Tufariello is the owner of a 7.6-acre tract of land located at 572 Mt. Pleasant Avenue, West Orange. The tract extends southerly from Mt. Pleasant Avenue for a distance of 750 feet and easterly from Summit Street for a distance of 400 feet. Consisting of 22 lots and situated in an R-4 residential zone, it is bounded by Mt. Pleasant Avenue, a heavily travelled thoroughfare, to the north, Summit Street to the west, the 35-acre Kessler Institute for Rehabilitation and the six-acre Redwood Manor Nursing Home to the south, the 20-acre Daughters of Israel Home for the Aged to the southeast and four residential properties to the east. South of the Kessler Institute, situated on a 60-acre tract, is the United States Armory. A short distance west of Summit Street, across a vacant lot, is the West Orange dump and incinerator. Directly across Mt. Pleasant Avenue are six houses.

Although the major portion of the property lies on a plateau, the land slopes downward approximately 80 feet in an easterly direction. There is a sheer rock formation, approximately 30 feet high, running along the northern edge of the property. In the northwest corner is a pinnacle of rock extending 20-25 feet above Mt. Pleasant Avenue. The westward edge of the tract slopes downward from the pinnacle until it becomes level at the southwest corner of the tract.

On September 25, 1964 defendant applied to the West Orange Building Inspector for a permit to construct a 100-unit garden apartment. Eollowing the denial of the permit, defendant applied to the board of adjustment, pursuant to N. J. S. A. 40:55-39(d), for a recommendation to the town council that a special use variance be granted. The board of adjustment conducted a hearing on November 10, 1964, after which it unanimously adopted a resolution recommending that the variance be granted. In that resolution the board found, among other things, that the premises were bounded by the municipal dump and institutional properties, that the topography of the tract was extremely irregular and included extensive subsurface rock, that development of the land for residential use would result in inordinate expense and in only a partial utilization of the land, that one-family construction was not feasible because of topographical conditions, that the cost of installing utilities for one-family houses would be prohibitive, that the garden apartment would not have an adverse effect on traffic, that the proposed use was not incompatible with presently existing uses and that the application could be granted without substantial detriment to the public good or impairment of the zone plan and zoning ordinance.

The town council, by a vote of 3-2, rejected a resolution granting the variance and subsequently adopted a resolution disapproving the board’s recommendation. In doing so it made 11 findings in addition to concluding that the negative criteria required by the statute had not been met.

Tufariello next instituted an action in lieu of prerogative writ to review the council’s action. At the hearing the court held that five of the council’s findings were without factual support in the record made before the board of adjustment. The matter was thereupon remanded to the board for the taking of testimony as to those five items. In settling the procedure to be followed on the remand, the court ruled that since the board’s personnel had changed, it was to take the testimony and note any objections but not to take a vote or make any findings, and thereafter to forward the transcript of the proceedings to the council which would then make its findings and determination. If the ultimate determination was adverse to Tufariello, the matter was to be returned to the court for its ruling.

Pursuant to the order, the board conducted a hearing at which four witnesses testified in opposition to the granting of the variance and Tufariello testified in favor. The transcript and exhibits of both hearings were then submitted to the council (whose membership was unchanged) which reversed its earlier decision and voted, 3-2, to grant the variance on the basis of the reasons set forth in the board of adjustment’s original recommendation. Tufariello’s original suit was eventually dismissed on the ground that it had been made moot by the granting of the variance.

In the meantime, plaintiffs filed their present suit challenging the council’s allowance of the variance. The trial judge affirmed, holding, in effect, that there was adequate factual support for the board’s original recommendation and the council’s action. The present appeal followed.

At the oral argument the parties were requested to submit supplementary briefs bearing on the validity of the grant of the variance as affected by the order for a limited remand made by the trial judge. They have done so.

We hold the court’s order of limited remand and the actions of the board and council taken thereunder were contrary to the purposes and requirements of N. J. S. A. 40:55-39(d) and compel reversal of the allowance of the variance to Tufariello.

N. J. S. A. 40:55-39(d) provides that the board of adjustment shall have the power to:

“Recommend in particular cases and for special reasons to the governing body of the municipality the granting of a variance to allow a structure or use in a district restricted against such structure or use. Whereupon the governing body or board of public works may, by resolution, approve or disapprove such recommendation. If such recommendation shall be approved by the governing body or board of public works then the administrative officer in charge of granting permits shall forthwith issue a permit for such structure or use.”

but that:

“No relief may be granted or action taken under the terms of this section unless such relief can be granted without substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and zoning ordinance.”

It is well established that a board of adjustment is an independent administrative body, Dolan v. DeCapua, 16 N. J. 599, 613 (1954), whose powers stem directly from the zoning statute. Tzeses v. Board of Trustees of South Orange, 22 N. J. Super. 45, 54 (App. Div. 1952); Duffcon Concrete Products, Inc. v. Cresskill, 1 N. J. 509, 515-516 (1949). Designed to provide expert discretion and judgment to matters coming within its cognizance, it acts in a quasi-judicial capacity in a manner consistent with the purposes of the zoning statute. Lynch v. Hillsdale, 136 N. J. L. 129, 132 (Sup. Ct. 1947), affirmed 137 N. J. L. 280 (E. & A. 1948); Potts v. Board of Adjustment of Princeton, 133 N. J. L. 230, 238 (Sup Ct. 1945).

Although the board can only recommend that a (d) variance be granted, that power is exclusive, Conlon v. Board of Public Works of Paterson, 11 N. J. 363, 368 (1953), and a variance can issue only where the board has so recommended. Schmidt v. Board of Adjustment of Newark, 9 N. J. 405, 421 (1952); Lynch v. Hillsdale, supra, 136 N. J. L., at p. 132. Thus a refusal by the board to so recommend cannot be appealed to the governing body. Eelief in such case may be had only in the courts, and only upon a finding of arbitrary or capricious action amounting to an abuse of discretion on the board’s part. Schmidt v. Board of Adjustment of Newark, supra, 9 N. J., at p. 423; Lynch v. Hillsdale, supra, 136 N. J. L., at pp. 132, 133. On the other hand a recommendation by the board is not reviewable until the governing body takes action thereon. Ackerman v. Board of Commissioners of Belleville, 1 N. J. Super. 69, 73 (App. Div. 1948); Kempner v. Edison Tp., 54 N. J. Super. 408, 417 (App. Div. 1959).

In addition to the board’s recommendation, the governing body must have the record made before the board, including its findings of fact and its conclusions drawn therefrom, Wolf v. Zoning Board of Adjustment of Park Ridge, 79 N. J. Super. 546, 552 (App. Div. 1963); only when it has had the benefit of these is the governing body in a position to make an enlightened decision. Kempner v. Edison Tp., supra, 54 N. J. Super., at p. 417; Tomko v. Vissers, 21 N. J. 226, 236 (1956). In the latter case it was held that the duty of the board upon being presented with an application for a variance is to “weigh the evidence submitted and reach basic factual determinations. These basic findings, in essence, serve to reflect the board’s conception of the true facts in the evidence presented. Erom the basic factual determinations the ultimate facts are to be derived.” (At p. 239) When the matter reaches the governing body it remains free, however, to draw its own conclusions from the record before the board and to deny the variance. Reinauer Realty Corp. v. Paramus, 34 N. J. 406, 415 (1961).

It seems clear that to have restricted the board to the taking and recording of the testimony of witnesses negated the very purposes for which the board was designed and reduced it to the level of a mere transmitter of words. If a remand to the board was justified, it was required to pass upon the credibility of the new witnesses, the relevance and weight of the evidence, and its effect upon the findings and conclusions it had arrived at in the performance of its statutory duty to make its recommendation to the council.

Defendant argues that no de novo hearing by the board was necessary because it had fulfilled its statutory function when it initially made its favorable recommendation to the council, and the remanding judge had found no error in this recommendation but had been concerned only with the council’s error in basing its denial of the variance in part, at least, on evidence not in the record. We disagree. Of necessity the board’s original recommendation gave no consideration to the testimony taken pursuant to the remand

The ultimate conclusions and determination of the council are reviewed on the basis of the record made before the board of adjustment. Kempner v. Edison Tp., supra, 54 N. J. Super., at p. 417. Where the determination has no basis in the record it is a nullity. Verona, Inc. v. Mayor, etc., of West Caldwell, 49 N. J. 274, 284-285 (1967).

The remanding judge dismissed Tufariello’s contention that sufficient credible evidence had been presented to require the grant of the variance without a remand. Implicit in his determination that five of the findings contained in the council’s resolution were without support in the record would be the conclusion that the remainder of its findings had adequate factual support. He arrived at no conclusion as to whether these, standing alone, afforded legally adequate support for the council’s action. However, had he been satisfied that the findings of the council were either irrelevant or rebutted by other evidence, he could have simply reversed and directed that a variance issue, or reversed and remanded to the council for a resolution founded on the record. Verona, Inc. v. Mayor, etc., of West Caldwell, supra, at p. 285. In view of the remand, we can only conclude that he felt the cited elements to be highly relevant, and that a fair determination could not be made absent the taking of the additional testimony. We have read the additional testimony and cannot say that it was immaterial or surplusage. We say this notwithstanding that we are impressed by the proofs adduced in support of the variance and the findings on which the board based its favorable recommendation.

When the court determines that the interests of justice call for a remand, it is made to the board for the taking of the additional testimony and reconsideration of the matter in the light of all the testimony. Kempner v. Edison Tp., supra, 54 N. J. Super., at p. 418. Whore, as here, the composition of the board had changed, the proper procedure would have been to remand the entire ease for a de novo hearing. Ibid. It was in an attempt to spare the parties the burden of a de novo hearing that the court erroneously directed that the remand be only a limited one.

It is evident that the council did not give the now testimony much weight since the one councilman who changed his vote to make up the new majority did not rely on it. Moreover, as noted, the council predicated its decision on the reasons originally given by the board in recommending the variance. Had the board been given the opportunity to conduct a de novo hearing, it may well have altered its findings and recommendations. More importantly, the council would then have had the benefit of its statutory right to the board’s recommendation and findings.

Finally, defendant argues that there should have been no remand in the first place, that the trial judge should have ordered that the variance be granted instead of remanding and that, therefore, we should ignore the new testimony and affirm. While this position would have substantial merit had no remand been ordered, the fact is that one was ordered and testimony was taken thereunder. We are thus left with no alternative but to decide the case on that basis.

In light of the above, we are satisfied that the judgment of the Law Division must be reversed, but without prejudice to the submission of a new application for a variance should defendant desire to do so. Accordingly, we find it unnecessary to pass upon the remaining points raised by appellants.

No costs.