text:
    BOROUGH OF HIGHLANDS, PLAINTIFF, v. JAMES T. DAVIS, DEFENDANT, AND RICHARD GILL, LUKE PENTA AND ROBERT WATERS, INDIVIDUALLY AND AS COUNCILMEN OF THE BOROUGH OF HIGHLANDS, DEFENDANTS-INTERVENORS.
    Superior Court of New Jersey Law Division
    Argued May 23, 1973
    Decided May 24, 1973.

      Mr. Edward C. Stokes argued the cause for plaintiff (Messrs. Stokes, Throckmorton & Cieri, Attorneys).

      Mr. Henry J. Saling argued the cause for defendant, James T. Davis (Messrs. Saling, Moore, O’Mara & Coogan, Attorneys).

      Mr. William G. Bossier argued the cause for defendantsintervenors (Labrecque, Parsons & Bossier, Attorneys).
   Lane, J. S. C.

The complaint, filed on behalf of the Mayor of Highlands, seeks a declaratory judgment whether the Mayor or the majority of the governing body of the Borough of Highlands has the authority to make appointments and promotions in the Police Department. At a meeting of the Borough Council held November 9, 1972 defendant Davis was appointed by vote of the Council sergeant effective immediately but with the salary to start January 1, 1973. Defendants-intervenors voted in favor of the motion with the Mayor and one Councilman in opposition. By reason of a direct order from the Mayor, Davis has not assumed the duties of sergeant. He counterclaims to recover the differential between his salary as patrolman and the salary of sergeant from January 1, 1973 and counsel fees incurred in the defense of this action. The matter is before the court on final hearing.

Highlands adopted SMALL MUNICIPALITY PLAN B (.N. J. S. A. 40 ¡69A-133 to 138) effective July 1, 1956. It has not adopted the provisions of Title 11 (Civil Service).

Ordinance #200 adopted April 8, 1940 established a police department. That ordinance in pertinent part provided :

1. The Police Department of the Borough of Highlands shall consist of two senior Officers and one junior officer, and such other employees as the Council may from time to time appoint.

Ordinance #0-68-5 adopted April 16, 1968 amended Section 1 oí Ordinance #200 to provide:

(1) The Police Department of the Borough of Highlands shall consist of a chief of Police, a Captain of Police, one or more Sergents [sic] of Police and as many police officers as the council may from time to time appoint.

N. J. 8. A. 40:69A-133 makes applicable to those municipalities adopting SMALL MUNICIPALITY PLAN B the provisions of N. J. 8. A. 40:69A-120 to N. J. 8. A. 40: 69A-132, as well as certain other provisions of the Faulkner Act including N. J. S. A. 40:69A-28. The Mayor contends that under N. J. 8. A. 40:69A-122 he has the appointment power to and within the police department with the advice and consent of the Council. N. J. 8. A. 40:69A-122 provides:

An assessor, a tax collector, an attorney, a clerk, a treasurer and such other officers as may be provided by ordinance shall be appointed by the mayor with the advice and consent of the council. One person may be appointed to two or more such offices, except that one person shall not be the assessor and treasurer, or assessor and collector.

In the alternative the Mayor contends that he has the sole power of appointment by virtue of N. J. 8. A. 40:69A-124 which provides:

All officers and employees whose appointment or election is not otherwise provided for in this article or by general law shall be appointed by the mayor. If the municipality has not adopted the provisions of Title 11 of the Bevised Statutes (Civil Service), it shall be the duty of the mayor to recruit, select and appoint persons qualified by training and experience for their respective offices, positions and employments.

Defendant and defendants-intervenors argue, however, that the appointment of police officers is provided for by general law and, therefore, the appointment power does not lie with the Mayor.

Policemen are municipal officers for certain purposes. Mercadante v. City of Paterson, 111 N. J. Super. 35, 38 (Ch. Div. 1970), aff'd o. b. 58 N. J. 112 (1971) and cases cited therein. The question remains whether they are officers within the meaning of N. J. S. A. 40:69A-122. The Mayor argues that since a policeman is a municipal officer whose appointment in Highlands is governed by ordinance, N. J. S. A. 40:69A-122 should control. It is further argued that Ordinance ffO-68 — 5 is invalid insofar as it provides for appointment by the Council because such provision is contrary to N. J. S. A. 40 :69A-122:

The court’s duty in construing a statute is to determine the legislature’s intention. Safeway Trails, Inc. v. Furman, 41 N. J. 467, 477 (1964), appeal dismissed, cert. den. 379 U. S. 14, 85 S. Ct. 144, 13 L. Ed. 2d 84 (1964). In the absence of ambiguity calling for permissible extrinsic aids, that intent is to be found in the document itself. Gangemi v. Berry, 25 N. J. 1, 10 (1957). Rules of statutory construction are always to be subordinated to the ultimate goal of carrying out the wishes of the legislature. Union Co. Bd. of Freeholders v. Union Co. Park Com., 41 N. J. 333, 337 (1964).

In the construction of statutes, when general words follow specifically named things of a particular class, the general words must be understood as limited to things of the same class or at least of the same general character. Transcontinental Gas Pipe Line Corp. v. Dept. of Conserv., etc., 43 N. J. 135, 146 (1964). This rule will be applied whenever a restricted meaning must be given to general words to carry out the legislative intention. DeFazio v. Haven Savings and Loan Ass'n., 22 N. J. 511, 518 (1956). However, the rule may only be resorted to when the statutory language is of doubtful meaning and not when the legislative design is expressed in plain terms. Downey v. Bd. of Education of Jersey City, 74 N. J. Super. 548, 553 (App. Div. 1962). The meaning of statutory words may also be controlled and indicated by those words with which they are associated. Germann v. Matriss, 55 N. J. 193, 220 (1970); Martell v. Lane, 22 N. J. 110, 117 (1956).

N. J. S. A. 40:69A--122 and 124 read together present an ambiguity as to the scope of Section 122 and, therefore, rules of statutory interpretation to eliminate the ambiguities are applicable. The phrase “such other officers” in N. J. 8. A. 40 :69A-122 is limited not by the subsequent phrase “as may be provided by ordinance” but rather by the preceding list of offices to which the statute is to apply. Policemen are not within the same category of public officers as an assessor, tax collector, attorney, clerk or treasurer. If the legislature had intended that policemen should be included among “such other officers,” it would not also have provided that “[o]nc person may be appointed to two or more such offices,” since it is unlikely that the legislature would have intended to permit a full-time patrolman to be an administrative officer of the borough. N. J. S. A. 40: 69A-12253 application is limited to the appointment of administrative officers of the town and is not intended to cover such other municipal officers as full-time policemen.

The Mayor does not have authority to appoint police officers under N. J. 8. A. 40:69A — 122. This conclusion is further supported by a consideration of the total legislative scheme of which N. J. 8. A. 40 :69A-122 is a part.

The appointing authority must be derived from N. J. 8. A. 40 :69A-124, unless it is provided for by general law. N. J. 8. A. 40:69A-28 defines that term:

Dor the purposes of this act, a “general law” shall be deemed to be any law or provision of law, not inconsistent with this act, heretofore or hereafter enacted which is by its terms applicable or available to all municipalities, and the following additional laws whether or not such additional laws are so applicable or available to all municipalities; legislation relating to taxation, local courts, education, health, public authorities serving more than one municipality, and municipalities in unsound financial condition.

The general law concerning establishment of police departments is N. J. 8. A. 40A:14-118, which provides:

The governing body of any municipality, by ordinance, may create and establish a police department and force and provide for the maintenance, regulation and control thereof, and except as otherwise provided by law, appoint such members, officers and personnel as shall be deemed necessary, determine their terms of office, fix their compensation and prescribe their powers, functions and duties and adopt and promulgate rules and regulations for the government of the department and force and for the discipline of its members.

The predecessor of N. J. 8. A. 40A:14r-118 is N. J. S. A. 40:47-1 which was adopted before the Faulkner Act. In 1949 the Commission on Municipal Government published its preliminary report on the proposed Faulkner Act. Its comment on what are now N. J. S. A. 40:69A-26, 27 and 28 reads:

This definition of general law would apply to the optional plans such standard laws as the “Local Bond Law” (R. S. 40:1-1 et seq.) ; the “Local Budget Law” (R. S. 40:2-1 et seq.) ; fire and police (R. S. 40:47-1 et seq.) ; ordinances and resolutions (R. S. 40:49-1 et seq.); planning, building laws, zoning (R. S. 40:55-1 et seq.). Further study may require an expansion of the “additional laws” category. The problem of classification is one which is basic to any new system of municipal government, but it is unlikely to be solved by any generalization. The Commission has experimented with various “standard classifications” intended to replace the present hodge-podge of classifications, but has not yet determined upon any suitable basis which would be germane to all of the various purposes of legislation. With the large degree of local self-government provided by the powers clause of this chapter, however, the Commission believes that the need for legislative classification has been substantially reduced if not entirely eliminated.

The commeut on these sections in the Commission’s final report published in 1950 is virtually identical.

In view of the history of the Faulkner Act and its relationship with "general law” governing the municipalities, it is apparent that N. J. 8. A. 40A :14-118 is complementary to, rather than in conflict with, the Faulkner Act, completing an overall legislative design in which appointments to administrative offices established by ordinance are governed by N. J. 8. A. 40 :69A-122, all other offices which the Mayor finds necessary to the proper administration of the town but which are not covered by other general law are governed by N. J. 8. A. 40 :69A-124, and the appointment of members of the police force is specifically governed by ordinance adopted under N. J. 8. A. 40A: 14-118.

The Mayor argues that even if this view is accepted, the borough ordinance does not provide for promotions and therefore promotions are subject to the Mayor’s powers under N. J. 8. A. 40 :69A — 124 to make personnel decisions in the absence of an ordinance. This position must fail. Grammatically read, the ordinance clearly provides that the Council will appoint not only police officers but also the chief of police, the captain of the police and one or more sergeants of the police.

The appointment of Davis as sergeant with his salary to commence January 1, 1973 was valid. Since that date he has at all times been ready to perform the duties of such office. He is entitled to the differential in salary between what he has been paid as a police officer and what he would have been paid as a sergeant from that date. If the parties are unable to agree, application may be made to the court by motion to fix the amount.

Davis also seeks to recover pursuant to N. J. 8. A. 40A: 14-155 from Highlands counsel fees incurred for his representation in this action. An interpretation of the scope of N. J. 8. A. 40A:14-155 is required. That statute was derived from N. J. 8. A. 40:11-19 which provided:

Where a member of any police or fire department is made a defendant in any suit or other legal proceeding arising out of the performance of police or fire duty or out of any incident arising in the line of such duty, the officer, board or body in control of such police or fire department shall provide all necessary legal aid necessary for the defense of such suit or other legal proceeding; provided, this shall not apply to any disciplinary or criminal proceeding instituted against such policeman or fireman by the municipality in which he is employed.

The. title of the act containing this provision reads: “An Act providing for legal aid to police officers and firemen in suits or other legal proceedings against them arising from incidents in the line of duty.” L. 1946, c. 67, p. 255, as amended L. 1947, c. 103, p. 518, § 1.

In 1971 the provision was replaced by N. J. S. A. 40A :14-155, which then read:

Whenever a member or officer of a municipal police department or force is sued for damages arising from or incidental to a performance of his duties, the governing body of the municipality shall provide said member or officer with necessary means for the defense of such suit, but not for his defense in a disciplinary or criminal proceeding instituted against him by the municipality.

This provision was amended in 1972 to read (L. 1972, c. 165) :

Whenever a member or officer of a municipal police department or force is a defendant in any action or legal proceeding arising out of or incidental to the performance of his duties, the governing body of the municipality shall provide said member or officer with necessary means for the defense of such action or proceeding, but not for his defense in a disciplinary proceeding instituted against him by the municipality or in a criminal proceeding instituted as a result of a complaint on behalf of the municipality. If any such disciplinary or criminal proceeding instituted by or on complaint of the municipality shall be dismissed or finally determined in favor of the member or officer, he shall be reimbursed for the expense of his defense.

Where a clarification of the legislative purpose is necessary, statements attached to bills before passage are relevant evidence as to the legislative intent. Howard Savings Inst. v. Kielb, 38 N. J. 186, 195 (1962); Morris & Essex Invest. Co. v. Director of Div. of Taxation, 33 N. J. 24, 33-34 (1960).

The statement attached to the bill introducing this amendment reads:

This bill would: a. restore to police and firemen the right to reimbursement for expenses of their defense of criminal charges brought againt them for acts performed in the performance of duty as was provided by N. J. S. A. 40:11-19, repealed by P. L. 1971, c. 197 effective July 1, 1971, and b. provide for reimbursement for police and firemen cleared of disciplinary charges or criminal proceedings brought by or on complaint of the employing municipality or county.

It is clear that the intent of the legislature in adopting L. 1972, c. 165 was to protect a police officer when his conduct in office was brought into question. There was no intent to make provision for representation in an action brought to test a police officer’s appointment or promotion. To read the statute to require Highlands to pay the cost of Davis’ representation in this action would be to extend unwarrantedly the legislative grant of protection.

Judgment will be submitted embodying the views set forth.


source: Caselaw Access Project

author: Gascoyne, J. C. C.,

license: Public Domain

text:
    JOHN F. CONKLIN AND KATHERINE V. CONKLIN, PLAINTIFFS, v. RONALD M. HEYMANN, DIRECTOR OF THE DIVISION OF MOTOR VEHICLES OF THE STATE OF NEW JERSEY, AND ALLSTATE INSURANCE COMPANY, DEFENDANTS.
    Superior Court of New Jersey Law Division
    Decided May 31, 1973.

      Mr. Melvin Tolstoi for plaintiffs (Mr. William O. Barnes, attorney).

      Mr. Rocco D’Ambrosio for defendant Allstate Insurance Company (Messrs. O’Donnell, Leary and D’Ambrosio, attorneys) .
   Gascoyne, J. C. C.,

Temporarily Assigned. Plaintiffs instituted suit against Ronald M. Heymann, Director of Motor Vehicles (Director), seeking recovery pursuant to N. J. 8. A. 39:6 — 78 relating to “hit and run” cases. In the alternative, action was brought against Allstate Insurance Co. (Allstate) seeking a declaratory judgment under a policy of insurance issued by it. The declaratory judgment sought construction of two provisions of the uninsured motorist endorsement. A motion for summary judgment was made on behalf of the Director and was granted. The following facts are germane to the resolution of the remaining issue, construction of the insurance policy.

The parties stipulated that (1) on May 16, 1970 Katherine W. Conklin was a passenger in a vehicle operated by her husband, John F. Conklin; (2) the vehicle was owned by General Adjustment Bureau, Inc. (GAB), Conklin’s employer; (3) as a result thereof both plaintiffs were injured and now seek recovery against their insurance company, Allstate Insurance Co. (Allstate); (4) the Conklins carry uninsured motorist (UMI) coverage with Allstate.

John F. Conklin testified that while operating the vehicle he was forced off the road by an unknown vehicle. Proofs established that the police arrived at the scene and investigated. At the scene the police were satisfied that Conklin’s physical condition was “apparently ok” and that there was no drinking involved. He told the police that “a car coming in the opposite direction with bright lights on forced him to veer off the traffic way.”

There is no dispute that at the time of the accident GAB was insured by Home Indemnity Company (Home). John F. Conklin testified that while he knew this to be a fact, lie did not know whether or not Home had UMI coverage. The Unsatisfied Claim and Judgment Fund (Fund) was notified of the accident. On October 8, 1970 the Fund advised the Conklins that there would be no protection by it because it had been advised by Home that it had UMI coverage.

On November 20, 1970 the Conklins were advised that Home had no such coverage. Just shortly prior to receipt of this notification Conklin had questioned his superior at GAB as to UMI coverage. His superior advised that he did not think there was such coverage but he would check it out.

The Conklins both testified that they had discussed the accident with one George Nicoli, their Allstate agent, early in June 1970 but this was collateral to other matters.

Oil December 11, 1970 Allstate was put on notice of the accident by counsel for the Conklins. The pertinent portions of the policy provide that “hit-and-run vehicle” means

* * * (i) a highway vehicle which causes an accident resulting in bodily injury to an insured arising out of physical contact of such vehicle with the insured or with a vehicle which the insured is occupying at the time of the accident, or (ii) a highway vehicle which without physical contact with the insured or with a vehicle which the insured is occupying at the time of the accident causes bodily injury to an insured arising out of an accident in New Jersey, provided :
❖ í¡í> *
(b) the insLired or someone on his behalf shall have reported the accident within 48 hours to a police, peace or judicial officer or to the Commissioner of Motor Vehicles, and shall have filed with the company within 30 days thereafter a statement under oath that the insured or his legal representative has a cause or causes of action arising out of such accident for damages against a person or persons whose identity is unascertainable, and setting forth the facts in support thereof; and
(d) with respect to subdivision (ii) the facts of such accident can be corroborated by competent evidence other than the testimony of any person having a claim under this or any other similar insurance as the result of such accident; * * *.

Allstate takes the position that there is no coverage for two reasons: (1) there has been a failure to comply with the condition that the company be notified within 30 days after the accident; (2) there has been a failure to comply with the requirement that the “no contact accident” be corroborated by competent evidence other than by a person having a claim.

An examination of the cases in New Jersey indicates that there has been no construction of these provisions by any court of this State. Thus, in construing both of these provisions the court should not be unmindful that New Jersey is unique in that it requires coverage in “no contact” cases, as distinguished from other jurisdictions that require contact before any recovery is allowed. Those jurisdictions requiring contact do so with the design

to curb fraud, collusion, and other abuses arising from claims that “phantom cars” had caused accidents which, in fact, had resulted solely from the carelessness of the insured. For example, a driver who fell asleep and hit a telephone pole might claim he had swerved off the road to avoid being hit by an unidentified vehicle. The provision requiring physical contact with the unknown vehicle was added to the statute in order to eliminate such fictitious claims. * * * |Hanover Insurance Co. v. Carroll, 241 Cal. App. 2d 558, 50 Cal. Rptr. 704 at 706-707]

It is in this clime that construction of these clauses is now undertaken,

I

It is obvious that Allstate was not notified of the accident within 30 days of the date of the accident, May 1G, 1970. The question, then, is whether in the light of the facts in this case coverage should be denied because of late notice.

Our courts have consistently recognized that the basic purpose of automobile insurance is the protection of the policy holder against loss resulting from the operation of a motor vehicle. As a concomitant with the public policy our Supreme Court had held that

* * * [W]e have recognized that the terms of an insurance policy are not talked out or bargained for as in the case of contracts generally, that the insured is chargeable with its terms because of a business utility rather than because he read or understood them, and hence an insurance contract should be read to accord with the reasonable expectations of the purchaser so far as its language will permit. Allen v. Metropolitan Life Ins. Co., 44 N. J. 294, 305 (1965) ; Merchants Indemnity Corp. v. Eggleston, 37 N. J. 114, 121 (1962) ; Mazzilli v. Accident & Casualty Ins. Co. of Winterthur, 35 N. J. 1, pp. 7-8 (1961) ; Kievit v. Loyal Protective Life Ins. Co., 34 N. J. 475, 488 (1961). [Cooper v. Government Employees Ins. Co. 51 N. J. 86, 93 (1968)]

The court went on to say:

[W]hat is involved is a forfeiture, for the carrier seeks, on account of a breach of that provision, to deny the insured the very thing paid for. This is not to belittle the need for notice of an accident, but rather to put the subject in perspective. Thus viewed, it becomes unreasonable to read the provision unrealistically or to find that the carrier may forfeit the coverage, even though there is no likelihood that it was prejudiced by the breach. To do so would be unfair to insureds. It would also disserve the public interest, for insurance is an instrument of a social policy that the victims of negligence be compensated. To that end companies are franchised to sell coverage.
* * * The insurance contract not being a truly consensual arrangement and being available only on a take-it-or-leave it basis, and the subject being in essence a matter of forfeiture, we think it appropriate to hold the carrier may not forfeit the bargained-for protection unless there are both a breach of the notice provision and a likelihood of appreciable prejudice. The burden of persuasion is the carrier’s. [Id. at 94]

Cognizance is given to the fact that the court in Oooper was construing a different type of notice provision than the one presently under consideration. However, there seems to he no logical reason to differentiate between the provisions, for the purposes of construing the provision in the present ease.

Thus, with these criteria in mind, this court finds that there was a breach of the notice provision. Allstate had failed to sustain its burden of proof of showing the likelihood of appreciable prejudice, after giving due deference to the admonition that the proofs should be scanned to avoid fraud, collusion and other abuses. There is a paucity of proofs to show that Allstate is in any worse position on December 11, 1970 when notice was sent that it would have been on May 17, 1970, the day following the accident. All the facts indicate willingness on part of defendants to cooperate, and this dispels any claim of fraud or collusion on their parts.

II

We now turn to the construction of V(ii) (d), the provision requiring that a no contact accident be “corroborated by competent evidence other than the testimony of any person having a claim.” In construing insurance contracts certain basic principles are to be applied. Ambiguities are to be construed in favor of the assured, Bryan Constr. Co., Inc. v. Employer’s Surplus Lines Ins. Co., 60 N. J. 375 (1972). The other guidelines were laid down in Mazzilli v. Acc. & Gas. Ins. Co. of Winterthur, 35 N. J. 1 (1961), and as restated in the Ohio Gas. Ins. Co. v. Flanagin, 44 N. J. 504. Mazzilli stated

Solution of a problem of construction of an insurance policy must be approached with a well settled doctrine in mind. If the controlling language will support two meanings, one favorable to the insurer, and the other favorable to the insured, the interpretation sustaining coverage must be applied. Courts are bound to protect the insured to the full extent that any fair interpretation will allow. Kievit v. Loyal Protective Life Ins. Co., etc., 34 N. J. 475 (1961). Moreover, in evaluating the insurer’s claim as to the meaning of the language under study, courts necessarily consider whether alternative or more precise language, if used, would have put the matter beyond reasonable question; also whether judicial decisions appear in the reports attributing a more comprehensive significance to it than that contended for by the insurer. Mahon v. American Gas. Co. of Reading, Pennsylvania, 65 N. J. Super. 148 (App. Div. 1961). [35 N. J. at 7]

Bearing in mind these general principles, wo come to the interpretation the words “corroborated by competent evidence”. Does it mean that there had to be a disinterested witness? If this is so, it would open the door wide for collusion and fraud, the very things sought to be protected against. We construe this phrase to include such things as the on-the-scene investigation by 1he police and timely reporting to the insurance company, in this case Home, albeit mistakenly.

In reaching this conclusion it is felt that the language of the court in Chicago Ins. Co. v. Security Ins. Co. of Hartford, 111 N. J. Super. 291 (App. Div. 1970) is apropos. The court held (at 295) that “the language of the omnibus clause of a policy is to be construed broadly in favor of the insured and injured persons to effectuate a strong legislative policy of assuring financial protection for innocent victims of automobile accidents.”’ The public policy in this case is articulated by the Legislature in N. J. 8. A. 17:28-1.1, 1.2 and in pari materia with the Motor Vehicle Security Responsibility Act, the Unsatisfied Claim and Judgment Eund Law and the Motor Vehicle Liability Security Law, the common purpose of which is “to afford reasonably complete remedies to victims of motor vehicle accidents.” New Jersey Legislature Report •& Recommendations (1952), at 9. The overriding state interest or public policy is to have a viable insurance program available to New Jersey motor vehicle registrants. Thus, the term “competent evidence” should be given its broadest construction. To do otherwise would effectively eliminate coverage in no contact accidents. The insured would be paying a premium for coverage which would be difficult if not impossible to enforce unless resort was made to fraud or collusion.

For the reasons set forth above, it is determined that Allstate affords coverage to the Conklins, and judgment will be entered accordingly.


author: Greenberg, J. C. C.,

text:
    STATE OF NEW JERSEY, PLAINTIFF, v. ROYAL EZRA DUNBAR AND ROBERT GENE THOMAS, DEFENDANTS.
    Superior Court of New Jersey Law Division — (Criminal)
    Decided June 4, 1973.

      Mr. Campbell Jackson, Assitant Prosecutor, for the State (Mr. Richard J. Williams, Atlantic County Prosecutor, attorney) .

      Mr. Jacob Gorny, Assistant Deputy Public Defender, for defendant Robert Gene Thomas (Mr. Robert LeGore, Deputy Public Defender, attorney).
   Greenberg, J. C. C.,

Temporarily Assigned. Under one of the counts in the indictment in this ease defendant Robert Gene Thomas was convicted by a jury of receiving stolen property. N. J. S. A. 2A:139-1. The offense occurred on January 4, 1973. He was charged with receiving and having in his possession a wallet, two car keys and some money. There was introduced no evidence of the value of the wallet and car keys, and, in any event, these items would undoubtedly have been of inconsequential value. Defendant Thomas was arrested in actual possession of $72 in stolen money and his codefendant was arrested in actual possession of $73 in stolen money. Therefore, even regarding Thomas as having been in legal possession of all of the money, the value of all the property that he received was $145.

Defendant moves for a judgment of acquittal on the ground that he was not convicted of anjr offense within the purview of N. J. S. A. 2AA39-1, since that section, as amended effective September 27, 1972, applies only where the value of the property in question is in excess of $200. The same amending act constitutes the receiving of property having a value of $200 or less a violation of the Disorderly Persons Act. N. J. S. A. 2A:170-41.1.

There is no doubt that defendant is not guilty of a violation of N. J. S. A. 2AA39-1. The question is whether the jury verdict is to be regarded as a conviction under the Disorderly Persons Act and, if so, whether this court is to impose sentence thereunder.

In the case of State v. McGrath, 17 N. J. 41 (1954), the Supreme Court held that the count of an indictment charging simple assault and battery should have been dismissed. Defendant had also been indicted for atrocious assault and battery. The court held that in view of the Disorderly Persons Act the offense of simple assault and batterjr was within the sole jurisdiction of the municipal court. In the course of its opinion the court emphasized the problems which it felt would arise if in the ordinary case a jury could convict a defendant of any lesser charge than that specified in the indictment, indicating that instructions to the jury would be required as to all offenses for which a defendant could conceivably be convicted; that if such instructions were to be given, then counsel would have the right in their opening statements to refer to all lesser offenses and to introduce evidence relevant to the same, resulting, in the view of the court, in “the utter confusion of the jury.” Id., at 46. McGrath was followed by the court in State v. Currie, 41 N. J. 531 (1964), but in State v. Briley, 53 N. J. 498 (1969), the court stated in a footnote (at 504)

We need not decide whether the Superior Court, to which all indictments are returnable, has jurisdiction to hear the disorderly-person offense of assault and battery as a lesser included offense when a defendant is on trial for atrocious assault and battery, nor, assuming such jurisdiction does exist, need we decide at this time what, if any, procedural steps might be necessary to facilitate complete disposition of both offenses. * * *

Thus, the latest intimation of the Supreme Court is that the question is still open.

The problems noted by the court in State v. McGrath, supra, as complicating factors, do not exist in the present case. There are no differences between the indictable offense of receiving stolen property and the disorderly persons offense, other than the value of the property. Indeed, the Legislature patterned the disorderly persons offense so closely after the indictable offense that even the reference to a jury was included in the disorderly persons offense. See N. J. S. A. 2A:170-41.1. This reference may have been in error since, of course, the right to jury trial would not exist except with respect to an indictable offense. In any event, there will ordinarily have to be made some determination of value in the trial of an indictment for receiving stolen property. The jury will have to determine that the value is in excess of $200 in order to convict a defendant of the indictable offense. Obviously, if the jury determines that the value is not in excess of $200, then a determination has been made of all that is necessary to convict the defendant of the disorderly persons offense. No problem exists with respect to instructing the jury as to other offenses.

The alternatives to a determination that defendant in this case has been convicted of the disorderly persons offense of receiving stolen property would be to acquit him, with no further action to be taken, or to acquit him with the matter to be referred to the municipal court for prosecution. Neither alternative would seem to serve the ends of justice. It is difficult to conceive of why defendant should avoid any conviction. He has, after all, been found guilty by a jury of acts which constitute a disorderly persons offense. While such a charge would not ordinarily be tried by a jury, this would not seem to give defendant ground for complaint. A defendant tried for an indictable offense does not have his constitutional rights infringed when he is tried by a jury, even though he has unilaterally attempted to waive a jury trial, State v. Belton, 60 N. J. 103 (1972), and there certainly would seem to be no reason why a nonindictable offense could not be tried by jury. Defendant argues that he should be acquitted because the State made an “election” to try him on the indictable offense and should not now be permitted to have a conviction on ■the lesser charge. This argument, however, merely states a conclusion with no reasons for it. Defendant would suffer no prejudice if determined guilty of the disorderly persons offense.

The second alternative of referring the matter to the municipal court for further proceedings (as suggested in State v. McGrath, supra) would also seem unsatisfactory on the facts of this case. Defendant has already had a trial and been found guilty as to all elements of the disorderly persons offense. No reason is perceived as to why the same issues should be relitigatcd in another court.

An argument can be made that the ends of calendar control require ihat it be held that defendant cannot be determined guilty of the disorderly persons offense. That is, if the State is forced at its peril to make an election as between the indictable and nonindictable offense, then in all dose cases as to value the State will tend to proceed against a defendant in the municipal court rather than take the risk that he will avoid any conviction at all because of a determination on the trial of the indictment that value was $200 or less. This will result in fewer indictments being returned and a reduction in the indictable case load. From that viewpoint the argument may have some merit. However, it must be kept in mind that the question being dealt with is one of value. Value in many cases is a matter of opinion as to which even experts can differ. If the State has sufficient evidence of value to procure an indictment, the State should be allowed to rely on this evidence. Moreover, the distinction between the offenses based on value is a legislative determination, and it would seem that the courts should not take a position which would tend to thwart the will of the Legislature.

One other factor may be worthy of mention. By reason of an assignment order of the Supreme Court, all County Court judges are temporarily assigned to each municipal court in the county for which they have been appointed. While N. J. 8. A. 2A;3-4 provides that the “county court of each comity shall have cognizance of all crimes and offenses of an indictable nature,” as to jurisdiction in municipal courts N. J. 8. A. 2A:8-21 provides:

Each municipal court, and the magistrate or magistrates thereof, shall have jurisdiction of the following offenses occurring within the territorial jurisdiction of the court:
d. Violations of the “disorderly persons law”, ;i" *.

Of course, under N. J. 8. A. 2A:8-5.1, effective as of September 25, 1967, magistrates are known and referred to as judges of the municipal court. Thus, it is to be noted that in the municipal courts jurisdiction lies with the court and also with the judges thereof. In view of the language of the statute it would not be correct to say that jurisdiction of disorderly persons offenses is solely with the municipal court, for then the words, “and the magistrate or magistrates thereof,” would be superfluous — and normally statutes are construed so as to give all words some meaning. State v. Sperry & Hutchinson Co., 23 N. J. 38 (1956). If it is concluded that the assignment order of the Supreme Court vests all Superior Court and County Court judges with the powers of municipal court judges, then Superior Court and County Court judges would seem to have jurisdiction over disorderly persons offenses, and the matter of which court a disorderly persons offense is tried in becomes unimportant. The foregoing seems a reasonable conclusion. While all of the trial courts in Yew Jersey have not been merged into one court, the judges of all state and county courts may and do serve in any trial court.

In view of the foregoing it is my conclusion that defendant stands convicted on a violation of N. J. S. A. 2A:170-41.1, being a section of the Disorderly Persons Act, and may be sentenced in this court according to law.


author: Verga, J. C. C.

text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. AUGUSTINE D’ANGERIO, DEFENDANT.
    Superior Court of New Jersey Law Division
    Argued March 16, 1973
    Decided March 26, 1973.

      Mr. David Laidman, argued the cause for respondent (Mr. Geoffrey Gaulkin, Prosecutor of Hudson County, attorney) .

      Mr. Ralph J. Salerno argued the cause for defendant.
   Verga, J. C. C.

This is a petition for an order to expunge the record of a criminal conviction, pursuant to N. J. S. 2A:164-28. Defendant was indicted on December 8, 1938 in the Court of Quarter Sessions, Hudson County, Indictment #393-38, for stealing a motor vehicle. On July 7, 1939, he was sentenced to the New Jersey Keformatory, Annandale, New Jersey for the term prescribed by law. This sentence was suspended and the defendant was placed on probation for three years.

During the argument, it came to light that the defendant was subsequently convicted of Larceny in 1953, in the Municipal Court of the city of Paterson, Docket ^1953-C— 1042. The record of this conviction was expunged by Judge John F. Crane, in the Superior Court, Law Division, Passaic County, on January 5, 1973.

The State contends that the defendant cannot have the record of his 1938 conviction expunged because of the subsequent 1953 conviction for Larceny. The defendant argues that the expungement of the 1953 Larceny conviction precludes the Court from considering it for the purpose of the present proceedings. This Court is of the opinion that the defendant’s argument is without merit.

The pertinent statute, N. J. S. 2A :164-28, reads as follows :

“In all cases wherein a criminal conviction has been entered against any person whereon sentence was suspended, or a fine imposed of not more than $1,000 and no subsequent conviction has been entered against such person, it shall be lawful after the lapse of ten years from the date of such conviction for the person so convicted to present a duly verified petition to the Court, wherein such conviction was entered, setting forth all the facts in the matter and praying for the relief provided for in this section.” (Emphasis added)

But for his subsequent conviction, the defendant would be entitled to expungement. However, the statutory language is explicit that the petition for expungement is lawful only if “no subsequent conviction has been entered against such person.” In State v. Chelson, 104 N. J. Super. 508 (Bergen Co. Ct., 1969), the Court refused to expunge the record of a conviction for Petit Larceny where the defendant was subsequently convicted of Petit Larceny in another county. It was held that in the ease of a multiple offender, the plain meaning of the language in the expungement statute is that “the record of no conviction, except possibly the last, can be expunged.” Here, of course, the record of the defendant’s last conviction has been expunged.

Defendant’s argument that the expungement of his subsequent conviction bars its consideration in the present proceedings, is contrary to the legislative intent in creating the remedy of expungement. In State v. Chelson, supra p. 510, the Court refers to a statement accompanying a hill amending the original expungement statute. The statement reads as follows:

“The purpose of this act is to assist only those persons who have one single conviction against them, and from the time of conviction and for a period of ten years thereafter have lived exemplary lives during that time and are aide to show by this petition that they have made a complete moral change.”

In view of the foregoing, it cannot have been the intent of the legislature to permit a multiple offender to expunge the records of all of his convictions by starling with the last and working backwards, arguing each time that his latter convictions never occurred because they had been expunged.

Petition denied.


author: Per Curiam.

text:
    FRANK R. WALLE, RESPONDENT, v. BOARD OF ADJUSTMENT OF THE TOWNSHIP OF SOUTH BRUNSWICK, MIDDLESEX COUNTY, NEW JERSEY, MICHAEL J. MIHALCIK, BUILDING INSPECTOR OF THE TOWNSHIP OF SOUTH BRUNSWICK, MIDDLESEX COUNTY, NEW JERSEY, AND CITY COUNCIL OF THE TOWNSHIP OF SOUTH BRUNSWICK, MIDDLESEX COUNTY, NEW JERSEY, APPELLANTS.
    Superior Court of New Jersey Appellate Division
    Submitted May 21, 1973
    Decided June 12, 1973.

      Before Judges Carton, Mintz and Seidman.

      Mr. Andre Wm. Gruber, attorney for appellants.

      Messrs. Garrenger & Rosta, attorneys for respondent (Mr. Joseph J. Rosta, Jr., on the brief).
   Per Curiam.

Defendant municipality, its board of adjustment' and building inspector appeal from a judgment in favor'of plaintiff property owner ordering, the issuance of a certificate of occupancy by defendant municipal building inspector.

In 1963 plaintiff sought a variance to restore an existing masonry building for use as an automobile repair shop. Such repair shops were not then and are not now a permitted use in the township’s LI-2 (Light Industrial.) zone. The variance was granted subject to three conditions, one of which included the requirement that the owner should not. permit more than three motor vehicles incapable of operation to be located outside the building.

From 1963 to July 1971 the building was used as a repair shop for foreign cars. On December 14, 1970 plaintiff was found guilty in the municipal court of violating the condition of the variance and was fined $50.

The premises then remained vacant until March 1972. At that time plaintiff applied to the municipal building inspector for a certificate of occupancy for a new tenant who also intended to use the premises as a repair shop. The application was denied for the reason that it was for a nonpermitted use and that a “[p]revious Variance [had] been voided due to violation of the terms of the Variance."

Plaintiff then instituted this action in lieu of prerogative writs: On defendant’s motion and plaintiff’s cross-motion for summary judgment the trial court ordered the issuance of the certificate. Hence this appeal.

It is well settled that a variance may be granted subject to conditions. In the present case the resolution granting the variance specifically provided that if the conditions of the variance were violated, “the applicant shall be deemed to be operating without a variance and shall be subject to the penalties provided for violation of the Zoning Ordinance.” However, the contention that the variance has become forfeited because of the violation must be construed in the light of the rule that a variance partakes, to a large degree, of the characteristics of a vested right in the land. Industrial Lessors, Inc. v. Garfield, 119 N. J. Super. 181, 183 (App. Div. 1972), certif. den. 61 N. J. 160 (1972).

The situation is essentially similar to that in whieh a property owner is charged with violating a restrictive covenant. In the ease of restrictive covenants courts normally construe a forfeiture provision against the person seeking its enforcement. Equity abhors a forfeiture. Although there may arise situations in which a forfeiture is warranted, such a result should not be permitted if a just result may be obtained by construing the provision as a condition. So here. The municipality in this case had other remedies available for the enforcement of the condition. N. J. S. A. 40:55~47 appears to give a municipality the right in such case to injunctive relief. In addition, it was authorized to take, and did in fact take, proceedings in the municipal court to impose penalties for the violation.

A forfeiture should not be suffered to exist, particularly under the circumstances of this case. It was not until March 1972 that the municipality advised plaintiff it considered the variance to be void. At the very least, it would seem to us that when the plaintiff was found in 1970 to be in violation and fined, it was incumbent upon the municipal authorities to seek to declare the variance void at that time if, in fact, it had any grounds for doing so.

Under the circumstances we construe the conditions of the variance as limiting the right of the municipality to that of imposing fines and seeking injunctive relief.

We see no merit to defendants’ additional argument that plaintiff should be denied relief because he failed to obtain site plan review by the planning board, as required by the zoning ordinance as a condition to issuance of a certificate of occupancy for a nonpermitted use. The provision sensibly applied only to the initial certificate of occupancy for a nonpermitted use, not subsequent occupancy for the same use.

Affirmed.


author: Pee Cueiam.

text:
    ROVA FARMS RESORT, INC., A NEW JERSEY CORPORATION, PLAINTIFF-RESPONDENT AND CROSS-APPELLANT, v. INVESTORS INSURANCE COMPANY OF AMERICA, A NEW JERSEY CORPORATION, DEFENDANT-APPELLANT AND CROSS-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued May 7, 1973
    Decided June 12, 1973.

      Before Judges Fritz, Lynch, and Trautwein.

      Mr. Marshall Selikoff argued the cause for appellant (Messrs. Lane, Evans & Selikoff, attorneys).

      Mr. Robert F. Novins argued the cause for respondent (Mr. Edward F. Liston, Jr., on the brief; Messrs. Novins, Novins and Farley, attorneys).
   Pee Cueiam.

The question presented here is whether the failure of a liability insurer, under the circumstances here present,, to offer .without qualification its policy limits where there was no assurance from plaintiff that the action could be settled at or within the policy limits — i. e., in a situation in which there had been no firm demand — constituted a sufficient lack of good faith to bring the matter within the intent of Bowers v. Camden Fire Ins. Ass’n, 51 N. J. 62 (1968), and make such an insurer responsible for the entire subsequent verdict which exceeded those limits. Following a trial without a jury, the judge below answered this question in the affirmative. As that inquiry relates to the particular circumstances of this case, where the injuries were so substantial and where the potential liability of the insured should have been reasonably obvious to a liability insurer irrespective of “advice of counsel,” we agree with the conclusion below.

We acknowledge that Bowers concerned a firm offer to settle within the policy limits and this case does not. While we thus extend the holding of Bowers, we neither extend nor depart from its basic tenet that, in settlement negotiations, liability insurance carriers shall be held closely to good faith in a responsible degree. As was said in Bowers:

Good faith is a broad concept. Whether it was adhered to by the carrier must depend upon the circumstances of the particular case. A decision not to settle must be a thoroughly honest, intelligent and objective one. It must be a realistic one when tested by the necessarily assumed expertise of the company. In cases like the present one, where the insurer recognizes the probability that an adverse verdiet at the trial will exceed the limit of its policy, the boundaries of good faith become more compressed in favor of the insured. * * *. Tat 71]

We think, as did the trial judge, that the insurance carrier here conducted itself in a manner falling short of these guidelines.

Without respect to the quality and quantity of proof relating to the sources of money obtained by the insured to pay the judgment, we find wholly frivolous the carrier’s argument to the effect that the insured’s damages should be diminished or reduced because it received voluntary assistance from others in paying the judgment. See Patusco v. Prince Macaroni, Inc., 50 N. J. 365 (1967).

Nor do we find any reason to disturb the determination of the judge that plaintiff should not have interest, challenged here by the cross-appeal.

Affirmed. No costs to either party.


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

text:
    JACOB VAN EEUWEN, ET AL., PLAINTIFFS-RESPONDENTS, v. HEIDELBERG EASTERN, INC., ET AL., DEFENDANT-RESPONDENT, AND HEIDELBERGER DRUCKMASCHINEN AKTIENGESELLSCHAFT, DEFENDANT-APPELLANT. JOSEPH E. CERTISIMO, ET AL., PLAINTIFFS-RESPONDENTS, v. HEIDELBERG CO., ET AL., DEFENDANTS-THIRD PARTY PLAINTIFFS, v. HEIDELBERGER DRUCKMASCHINEN AKTIENGESELLSCHAFT, THIRD PARTY DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued May 22, 1973
    Decided June 11, 1973.

      Before Judges Kolovsky, Matthews and Crahay.

      Mr. Peter E. Henry argued the cause for HDAG (Messrs. Crummy, O'Neill, Del Deo & Dolan, attorneys).

      Mr. Francis P. Witham argued the cause for Heidelberg Eastern, Inc. in the Van Eeuwen action (Messrs. Markey, Witham and Amabile, attorneys; Mr. John P. Markey, on the brief).

      Mr. John J. O’Donnell argued the cause for Heidelberg Eastern, Inc. in the Gertisimo action (Messrs. O’Donnell, Leary & D’Ambrosio, attorneys).

      Messrs. Vaccaro & Osborne filed a brief on behalf of plaintiff Van Eeuwen (Mr. Patrick P. Randazzo, of counsel).
   The opinion of the court was delivered by

Kolovsky, P. J. A. D.

In each of the above matters plaintiff sued to recover damages for injuries received while operating, on behalf of his employer, a printing press manufactured by defendant Heidelberger Druckmaschinen Aktiengesellschaft (HDAG), a German corporation. Each plaintiff alleged that his injuries were caused by defects in the printing presses which had been purchased by the respective employers of plaintiffs from Heidelberg Eastern, Inc., a Delaware corporation.

HDAG appeals, on leave granted, from orders denying its motion to quash the service of process made upon it in each case pursuant to the “long arm” service provision set forth in so much of R. 4:4-4 (c)(1) as reads as follows:

If it appears by affidavit of plaintiff’s attorney or of any person having knowledge of the facts that after diligent inquiry and effort personal service cannot be made upon any of the foregoing and if the corporation is a foreign corporation, then, consistent with due process of law, service may be made by mailing, by registered or certified mail, return receipt requested, a copy of the summons and complaint to a registered agent for service, or to its principal place of business, or to its registered office.

The sole issue involved in the two consolidated appeals is whether the trial courts erred in rejecting [¶] AG’s contention that “it is beyond the reach of jurisdictional due process with respect to an action in the courts of the State of New Jersey.”

The only proofs before the trial courts on [¶] AG’s motions appeared in the affidavit of Dr. Keese, its secretary. (Eor some unexplained reason, HDAG did not serve a copy of its motion in the Van Eeuwen action on its codefendant, Heidelberg Eastern, Inc. The codefendant did not appear. Although HDAG;s notice of motion in Certisimo was served on Heidelberg Eastern, Inc., the latter did not file an answering affidavit in the trial court. However, when the matters came before this court on HDAG’s applications for leave to appeal and for consolidation of the appeals, a consent order was entered granting, among other things, permission to Heidelberg Eastern, Inc. to file an affidavit with respect to the issue of jurisdiction, and to HDAG to file an answering affidavit. Those affidavits have been filed and, pursuant to the stipulation of the parties, will be considered by us.)

Dr. Keese’s original affidavit set forth that HDAG is a German corporation which manufactures and sells its printing presses in Germany to companies doing business in a number of countries, including the United States. The affidavit continued:

Title to said printing presses is transferred to the other companies and payment is made to [HDAG] outside the United States of America. All manufacturing and selling activities of [HDAG] are carried on outside of the United States.
Title to the printing presses and parts which are to be sold in the United States passes in Germany to Heidelberg Eastern, Inc., a New York corporation which is an importer of Heidelberg Printing Presses and parts in the United States. Heidelberg Eastern, Inc. transacts all business on its own behalf and is not an agent of [HDAG], [HDAG] does not own any of the shares of stock of Heidelberg Eastern, Inc.

Further, according to Dr. 'Keese, HDAG has no personnel in the United States; it “does no business in New Jersey”; it has no office, place of business, property, bank account or telephone listing there; it does not ship its products into New Jersey; it does not advertise or solicit business or pay taxes in that State or anywhere in the United States; Finally, the affidavit stated: • • .

Although [HDAG] products are sold to purchasers in the State of New Jersey, such sales are made by distributors such as Heidelberg Eastern, Inc. on their own behalf and for their own benefit and not on behalf of [HDAG]. [HDAG] does not sell Heidelberg Automatic Printing Presses to customers in the State of New Jersey. [HDAG] owns no financial interest in any New Jersey distributor of Heidelberg Printing Presses.
[HDAG] does not supervise, control or otherwise oversee the business operations of distributors of Heidelberg Printing Presses in the United States.

Both trial courts concluded that despite the facts set forth in Dr. Keese’s affidavit, still the New Jersey courts could and should assert “long arm jurisdiction” over IIDAG. In Van Eeuwen Judge Breslin held that where it is alleged that an article has been defectively manufactured or constructed, the manufacturer is subject to jurisdiction under our ‘long arm statute,” irrespective of where in the world the manufacturer is located, if it put the

article in international commerce with the idea and with the purpose of selling that article throughout * * * the world including * * * the United States.

In Certísimo, which is reported at 122 N. J. Super. 1, Judge Byrne, after reviewing the authorities, gave an affirmative answer to what he said was “the narrow question to be determined,” viz:

Does the sale and delivery of a product in a foreign nation by a foreign manufacturer to an American distributor with the obvious expectation that it will be sold in some state of the United States subject the foreign manufacturer to the personal jurisdiction of New Jersey’s courts when the product causes injury to a New Jersey resident in New Jersey? More simply, is a finding of jurisdiction in such a situation “consistent with due process of law”? (122 N. J. Super. at 5)

Both trial judges recognized that they might be breaking new ground in their rulings —. as indeed they were. However, in view of the additional proofs submitted to us, we find it unnecessary to venture into an uncharted area to resolve whether the “stream of commerce” rule adopted by the trial courts conforms to the requirements of due process, since we need go no further than the cases which have already been decided — many of which are cited in Judge Byrne’s opinion — to determine that the additional proofs show that it was proper to deny HDAG’s motion to quash service of process.

We conclude from our review of the additional proofs that the contacts between HDAG and this State arising out of the relationship between HDAG and Heidelberg Eastern, Inc., which sold and delivered the printing presses in this State, were such that “the maintenance of the suit[s] [in New Jersey] does not offend Traditional notions of fair play and substantial justice.’ ” International Shoe Co. v. State of Washington, etc., 326 U. S. 310, 316, 66 S. Ct. 154, 158, 90 L. Ed. 95 (1945).

This is not a ease in which the machine was introduced in New Jersey by a distributor or wholesaler who had made one or more casual purchases of the machine in a foreign country for resale in the United States. If it were, then indeed we would be called upon to decide whether it offends “traditional notions of fair play and substantial justice” to subject such a foreign manufacturer to the jurisdiction of this State merely because the casual purchaser from the manufacturer sells and delivers the machine in this State.

Here, however, Heidelberg Eastern, Inc. was not a casual purchaser from the manufacturer HDAG. Its relationship with HDAG was much more than that. It was one created by HDAG to actively promote and insure the sale of its presses in the United States.

To that end HDAG granted exclusive distributorship rights in designated portions of the United States to two corporations, Heidelberg Eastern, Inc. and Heidelberg Pacific, Inc. Heidelberg Eastern’s exclusive territory embraced 36 states, one-half of Texas and the District of Columbia. During the years 1966 and 1970 approximately 90%, and during the year 1971 approximately 80%, of Heidelberg Eastern’s business consisted of selling and servicing HDAG’s printing presses. Advertising and promotional publications prepared by HDAG directed to the ultimate users are supplied by it to Heidelberg Eastern so that it may distribute them to prospective customers and users of the presses. Heidelberg Eastern’s sales of such presses and parts in New Jersey during the four years 1968 through 1971 totalled $3,300,000 and the price paid by Heidelberg Eastern to HDAG for those items in that period totalled approximately $1,500,000.

On that background we find of little significance HDAG’s reference in its answering affidavit to the small percentage of its world-wide sales reflected in the sales made by Heidelberg Eastern, Inc. to New Jersey customers, or in its affidavit statement that

HEI [Heidelberg Eastern, Inc.] is a totally independent company from HDAG. It is a customer of HDAG. HDAG, however, has no influence whatsoever over the business affairs of HEI. The organization, sales effort, and after-sales service of HEI are matters wholly within HEI’s knowledge and discretion. HDAG deals with HEI merely as one of its customers and makes sales of its presses and parts to HEI in Germany. At the time of such sale, however, HDAG has no knowledge concerning the destination of a given machine beyond the Port of New York. HDAG ships its presses to HEI in New York without any knowledge of ivhether HEI has some other customer for resale of the press or, if so, who that customer may be or where he is located.

That HDAG has elected to market its products in the United States through the grant of exclusive distributorships in specified areas to independent contractors rather than through its own sales organization is of little moment in considering whether it is fair and just that HDAG be subject to the jurisdiction of the court of a state in which the exclusive distributor has sold and delivered one of HDAG’s presses. Pragmatically, the exclusive distributor, albeit that it is an independent contractor, is an “integral spoke in a wheel in which [HDAG] is the hub,” Hoagland v. Springer, 75 N. J. Super. 560, 564 (App. Div. 1962), aff’d o. b. 39 N. J. 32 (1962), a wheel created by HDAG to insure the distribution and sale of its printing presses in New Jersey as well as in the other states included in Heidelberg Eastern’s exclusive territory.

In those circumstances it is neither unfair nor unjust to subject HDAG to a suit in this State by a New Jersey resident who, while operating one of HDAG’s presses in this State, was injured by reason of an alleged defect in the press. See Roche v. Floral Rental Corp., 95 N. J. Super. 555 (App. Div. 1967), aff’d o. b. 51 N. J. 26 (1968).

The orders appealed from are affirmed.


text:
    LILLIE SACHS, PLAINTIFF-RESPONDENT, v. COMMERCIAL INSURANCE COMPANY OF NEWARK, NEW JERSEY, A NEW JERSEY CORPORATION, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued May 30, 1973
    Decided June 18, 1973.
    Before Judges Kolovsky, Matthews and Crahay.

      Mr. Floyd F. Lombardi argued the cause for appellant (Messrs. DeSevo, Cerutti & Lombardi, attorneys).

      Mr. Frank S. Wexler argued the cause for respondent (Messrs. Wexler and Guida, attorneys).
   Per Curiam.

The judgment is affirmed for the reasons expressed by Judge Larner.


author: McKenzie, J. C. C.,

text:
    EDUARD BRITTNER, PLAINTIFF, v. ROSA BRITTNER, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided May 29, 1973.
    Judgment for divorce granted.

      Mr. John A. Hila, attorney for plaintiff.
   McKenzie, J. C. C.,

Temporarily Assigned. Does cohabitation of the parties after the required separation period prevent the granting of a divorce under N. J. 8. A. 2A:34-2(d)?

The parties were married in Russia in 1934. Plaintiff served in the German Army and became separated from his wife in 1944. Immediately following the war, he came to the United States. He remained here until March 1971, when he returned for a visit to Germany. He located his wife and for a period of about four weeks they cohabited in Germany. He determined that the marriage relationship could not be resumed and returned to the United States, filing the present suit in December of 1971. His wife at all times has remained a resident of Germany. The two children of the marriage are emancipated.

N. J. 8. A. 2A:34-2(d) authorizes a judgment of divorce for

Separation, provided that the husband and wife have lived separate and apart in different habitations for a period of at least 18 or more consecutive months and there is no reasonable prospect of reconciliation; provided, further that after the 18-month period there shall be a presumption that there is no reasonable prospect of reconciliation;

Subsection (e) of the same statute permits a divorce on the grounds of

Voluntarily induced addiction or habitation to any narcotic drug as defined in the New Jersey Controlled Dangerous Substances Act, P. L. 1970, c 226 or habitual drunkenness for a period of 12 or more consecutive months subsequent to marriage and newt preceding the filing of the complaint * * *, [Emphasis supplied]

And subsection (f) recognizes as a ground for divorce

Institutionalization for mental illness for a period of 24 or more consecutive months subsequent to marriage and newt preceding the filing of the complaint * * *. [Emphasis supplied]

Subsection (g) authorizes a divorce where plaintiff has established

Imprisonment of the defendant for 18 or more consecutive months after marriage, provided that where the action is not commenced un1il after the defendant’s release, the parties have not resumed cohabitation following such imprisonment * * *.

Thus, it should be noted that unlike the subsections (e) and (f), subsection (d), under which the present suit is brought, contains no requirement that time period involved immediately precedes the filing of the complaint.

It should bo further noted that subsection (g) contains a requirement that cohabitation not have been resumed where the imprisonment term has been completed prior to the filing of the complaint.

Although the relationships of the various time periods to the date of the filing of the complaint were thus treated differently by the Legislature, each subsection is consistent with the fundamental aim of our recent divorce reform law to terminate dead marriages. See Quinn v. Quinn, 118 N. J. Super. 413 (Ch. Div. 1972); Morrison v. Morrison, 122 N. J. Super. 277 (Ch. Div. 1972). Twelve months of addiction or habituation to drugs or alcohol, and 24 months of mental institutionalization, are deemed to be sufficient indication that the marriage is no longer viable, provided that such conditions still continue at the time the complaint is filed. Similarly, where a defendant spouse remains in jail at the time the complaint is filed, after more than 18 months of imprisonment, this fact alone is sufficient evidence of the breakdown of the marriage. But where he has been released, plaintiff must further establish that the parties have not since cohabited.

Subsection (d) evinces a similar approach. The 18-month period of separation need not immediately precede the filing of the complaint, but the court must be satisfied in addition that there is no reasonable prospect of reconciliation. This does not mean that parties separated for more than 18 months many years past, who thereafter substantially resume the basic concomitants of the marital relationship, can obtain a divorce now on a mere showing that that relationship is now irretrievably lost. To permit a divorce under the statute, the period of separation and the irreconcilability of the marriage must have a nexus; the latter must flow from the former. See New Jersey Divorce Law Study Commission Final Report 73 (May 1970). But a transistory cohabitation, which does not amount to a true reconciliation, does not destroy the cause of action. This is consistent with the philosophy of the new divorce law in this area, as indicated by the abolition of condonation as a defense in suits for divorce based on fault. N. J. S. A. 2A: 34-7.

Here the parties were separated for some 27 years. Upon his return to Germany plaintiff sought to ascertain whether perhaps the marriage could be revived. The court is satisfied that a comparatively brief four-week trial period of cohabitation did not, under the circumstances in this particular case, amount to such a renewal of the marital ties, in disuse for so many years, as to deprive plaintiff of his cause of action. 3no real reconciliation was achieved, and plaintiff should not be penalized for an unsuccessful attempt at one. To hold otherwise would in general inhibit possible attempts at reconciliation by separated couples, a result to be avoided if possible. And if a divorce must be the ultimate result, what better evidence can be offered that there is no reasonable prospct of reconciliation than that the parties have recently tried and failed?

Judgment for divorce will be granted accordingly.


author: Mehler, J. S. C.

text:
    JOHN KULISH, J. ARNOLD WITTE, BURTON BERGMAN, CHARLES S. MANCUSO AND EUGENE ANDRUKITE, INDIVIDUALLY, AND AS MEMBERS OF THE TOWNSHIP COMMITTEE OF HILLSIDE, A MUNICIPAL CORPORATION OF THE STATE OF NEW JERSEY. PLAINTIFFS, v. THE HILLSIDE POLICEMEN’S BENEVOLENT ASSOCIATION, LOCAL NO. 70, DEFENDANT.
    Superior Court of New Jersey Chancery Division
    Decided June 11, 1973.

      Mr. James C. Welsh for plaintiffs.

      Mr. Thomas J. Savage for defendant (Messrs. Dugan, Tuclcer and Savage, attorneys).
   Mehler, J. S. C.

This action, arising from a labor dispute, involves the question whether public employees not engaged in a strike may peacefully picket or demonstrate at places of employment of members of the governing body both inside and outside of the municipality in which the dispute is ponding. The issue appears to be one of first impression in this State.

The matter is before the court on the return day of an order to show cause why an interlocutory injunction should not be issued restraining members of defendant association from parading, patrolling, loitering or picketing about the premises upon which plaintiffs, who are members of the township committee, the governing body of Hillside, may be in the course of their full-time employment.

The essential facts presented by the verified complaint and the affidavits of the parties are as follows:

The township committee and defendant, a voluntary association of police officers, have reached an impasse in their 1973 employment contract negotiations. Although the Public Employment Relations Commission has been notified of the impasse, and notwithstanding there is no strike, defendant’s members are picketing plaintiffs’ places of employment, all but one of which are located outside of the township.

Defendant, because of its belief that the township committee has failed to live up to previously executed agreements, has determined to undertake what it says are informational demonstrations to bring this matter to the attention of the public through such demonstrations. Admittedly, the demonstrations, as defendant characterizes them, or picketing, as plaintiffs call them — a matter of semantics — have been conducted in front of the places of employment of various plaintiffs in Livingston, Hackensack, Newark and Hillside.

Lines are formed by 5 to 13 off-duty policemen carrying signs bearing such words as “Support Your Police,” “Kulish Unfair,” “Mancuso Signs In, Welches In,” and similar phrases. A merry-go-round technique is employed — that is, the pickets form an oval and march in front of an entrance, maintaining the oval formation with each picket closely following the one in front of him. Each demonstration lasts approximately one hour. Although the picketing has been peaceful, plaintiffs Mancuso and Kulish have expressed the fear that picketing will adversely affect their employment status.

In this State public employees may not strike. Board of Education, Union Beach v. New Jersey Education Assn, 53 N. J. 29, 36 (1968). Peaceful picketing in furtherance of an unlawful purpose is not permissible and will be restrained. Id.; Delaware River and Bay Authority v. International Organization of Masters, Mates & Pilots, 45 N. J. 138, 150 (1965). The case at bar differs from the facts in those cases in that the Hillside police officers are not on strike and the picketing is occurring essentially at locations completely unrelated to the labor dispute. The industry of counsel and research by the court during the week since the order to show cause was issued have produced no case in which the precise question involved has been decided in this State or in fact elsewhere — hence its novelty insofar as the court has been able to ascertain.

Defendant argues that the activity of its members is within the ambit of free speech and not restrainable. While it is well settled that picketing and similar activity may involve elements of First Amendment rights, Thornhill v. Alabama, 310 U. S. 88, 60 S. Ct. 736, 84 L. Ed. 1093 (1940), and that policemen are not “relegated to a watered-down version of constitutional rights,” Garrity v. New Jersey, 385 U. S. 493, 500, 87 S. Ct. 616, 620, 17 L. Ed. 2d 562, 567 (1967), the Supreme Court, in International Brotherhood of Teamsters v. Vogt, 354 U. S. 284, 289, 293, 77 S. Ct. 1166, 1168, 1171, 1 L. Ed. 2d 1347, 1351, 1353 (1957), reh. den. 354 U. S. 945, 77 S. Ct. 1423, 1 L. Ed. 2d 1558 (1957), said that picketing, even though peaceful, involved more than ;just communication of ideas and is not immune from all state regulation. After reviewing several cases in which the court sanctioned the prohibition of picketing, the court concluded

This series of cases, then, established a broad field in which a State, in enforcing some public policy, whether of its criminal or its civil law, and whether announced by its legislature or its courts, could constitutionally enjoin peaceful picketing aimed at preventing effectuation of that policy.

See also Independent Dairy Workers, etc. v. Milk Drivers, etc., 30 N. J. 173, 183-184 (1959); Delaware River and Bay Authority, supra, 45 N. J. at 150; Board of Education, Union Beach, supra, 53 N. J. at 42.

Peaceful picketing is not unlawful simply because there is no strike. 48 Am. Jur. 2, Labor and Labor Relations, § 1385; A. F. L. v. Swing, 312 U. S. 321, 61 S. Ct. 568, 85 L. Ed. 855 (1941), reh. den. 312 U. S. 715, 61 S. Ct. 735, 85 L. Ed. 1145. It may be enjoined, however, where the location of the picketing is not in any way related to the labor dispute. Carpenters & Joiners Union v. Ritter’s Cafe, 315 U. S. 722, 62 S. Ct. 807, 86 L. Ed. 1143 (1942). There the court said:

It is true that by peaceful picketing workingmen communicate their grievances. As a means of communicating the facts of a labor dispute, peaceful picketing may be a phase of the constitutional right of free utterance. But recognition of peaceful picketing as an exercise of free speech does not imply that the states must be without power to confine the sphere of communication to that directly related to the dispute. Restriction of picketing to the area of the industry within which a labor dispute arises leaves open to the disputants other traditional modes of communication. To deny to the states the power to draw this line is to write into the Constitution the notion that every instance of peaceful picketing — anywhere and under any circumstances — is necessarily a phase of the controversy which provoked the picketing. Such a view of the Due Process Clause would compel the states to allow the disputants in a particular industrial episode to conscript neutrals having no relation to either the dispute or the industry in which it arose. [315 U. S. at 727, 728, 62 S. Ct. at 810]

In Vogt, supra, the court summarized the holding in Ritter by saying (354 U. S. at 290, 77 S. Ct. at 1169, 1 L. Ed. 2d at 1351), that “The Court held that Texas could, consistent with the Fourteenth Amendment, insulate from the dispute a neutral establishment that industrially had no connection with it. This type of picketing certainly involved little, if any, ‘communication’ ”.

The court’s statement also summarizes the situation in this case, for although defendant alleges that its purpose is to communicate its grievances to the public, almost all of the picketing is occurring at locations outside of the township where defendant’s message is not likely to reach voters and taxpayers of the township.

An affidavit submitted by defendant states that police officers appeared at the place of employment of plaintiff Witte in Staten Island, New York, to demonstrate, but no demonstration took place when it was learned he was not at work. Picketing in front of businesses which have no relationship to defendant’s dispute with the township committee, and particularly in outside municipalities, entails a substantial risk of potential harm to totally neutral third persons, that is, plaintiffs’ employers and their customers.

Citizens have the right to coerce a public body to their wish by denouncing the body and its officers, but they have no right to achieve that end by disabling the public body from acting at all. Board of Education, Union Beach, supra, 53 N. J. at 40.

I conclude that the likely purpose and effect of the picketing is to coerce plaintiffs into acceding to defendant’s demands not through legitimate public pressure but through fear of losing their jobs. Plaintiffs are faced with the dilemma of losing their jobs, resigning their positions as township committeemen, or complying with the wishes of defendant even though such compliance is not in accordance with their best judgment. This dilemma is produced by what I conceive to be illegitimate pressure. Such pressure and coercion by public employees cannot be permitted.

Defendant will accordingly be enjoined, pending final hearing and the further order of the court, from demonstrating, parading and picketing about the premises upon which plaintiffs are employed.


text:
    SALESIAN SOCIETY, PLAINTIFF-APPELLANT, v. FORMIGLI CORPORATION, EDWARD REIHL COMPANY, INC. AND WILLIAM REIHL AND EILEEN REIHL WOJTECKI, INDIVIDUALLY AS THE LAST OFFICERS AND DIRECTORS OF EDWARD REIHL COMPANY, INC., A DISSOLVED CORPORATION, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Argued May 30, 1973
    Decided June 15, 1973.

      Before Judges Kolovsky, Matthews and Crahay.

      Mr. William F. Tuohey argued the cause for appellant (Messrs. Milton, Keane & Brady, attorneys; Mr. Prospero DeBona on the brief).

      Mr. Frank B. Cinquina argued the cause for defendants-respondents Reihl and Wojtecki (Messrs. Schwartz and Andolino, attorneys; Mr. Edward R. Schwartz, of counsel).

      Mr. John W. Reinman argued the cause for defendant-respondent Formigli Corporation.
   Per Curiam.

Plaintiff appeals from summary judgments entered in favor of defendants in its action for money damages which was grounded in breach of contract, negligence and breach of warranty.

The facts are fully set forth in the opinion of Judge Botter which is reported at 120 N. J. Super. 493 (Law Div. 1972), and need not be repeated. We affirm essentially for the reasons given by Judge Botter and add only that we are not persuaded by plaintiff’s argument that the statute is not operative here since the cause of action was grounded in part in breach of warranty and strict liability in tort. The act by its operative terms provides — “no action whether in contract, in tort, or otherwise * * * shall be brought * * * more than ten years after * * * performance * * * construction.” We are satisfied then that N. J. S. A. 2A :14~1.1 limits any action encompassed within it regardless of its genesis or label.

Affirmed.


text:
    IN THE MATTER OF THE ADOPTION OF A CHILD BY E. M.
    Superior Court of New Jersey Appellate Division
    Argued June 4, 1973
    Decided June 19, 1973.
    Before Judges Fritz, Lynch and Trautwein.

      Mr. S. M. Chris Franzblau argued the cause for appellant (Messrs. Beckerman, Franzblau & Cohen, attorneys).
    Respondent natural mother argued the cause pro se.

   Per Curiam.

The question here is included in that reserved by a footnote in In re Adoption of Children by D., 61 N. J. 89, 94 (1972), to wit, whether a divorce on the grounds of desertion, standing alone and without any proof of the divorced parent having forsaken parental obligations, is a valid basis for considering additionally the best interests of the child toward the end of permanently terminating the rights of a natural parent.

In the instant matter the natural father obtained a divorce from the natural mother. He then remarried, as did she. The new wife of the natural father sought here to adopt a child born to her husband and hisi divorced wife. The natural mother objected. The court below found that the natural mother had neither abandoned the child nor forsaken her parental obligations, even though custody of the child was in the father. The trial judge considered himself bound by In re D. and denied the adoption.

We affirm.

The findings of fact with regard to the conduct of the natural mother relating to abandonment and the forsaking of parental obligations vel non are amply supported in the credible evidence in the whole record, and we will not disturb them.

We think the fact that an objecting natural parent has been divorced by the other parent, on grounds of desertion by the objecting parent of the plaintiff-spouse, does not diminish the thrust of the policy established in In re D., where it clearly appears that natural ties, still cherished, are entitled to substantial protection. The precise disapproval there of “expressions [that] may be found in some opinions which might be understood to suggest that the courts belief as to the best interests of the child was of paramount importance without regard to whether parental obligations could be said to have been forsaken,” is significant. 61 N. J. at 95.

We believe that the umbilical of natural parenthood is so sacred that only in the most exceptional cases will anything other than self-destruction by the natural parent sever it. We answer the question posed by the footnote, 61 N. J. at 94, insofar as it relates to a divorce for desertion, in the negative.

Affirmed.


text:
    HAGOP DEMIRCI, PLAINTIFF-RESPONDENT, v. BERNARD V. BURNS, JR., DEFENDANT-APPELLANT. HAGOP DEMIRCI, PLAINTIFF-RESPONDENT, v. FANNING PERSONNEL OF PATERSON, DEFENDANT-APPELLANT. HAGOP DEMIRCI, PLAINTIFF-RESPONDENT, v. DR. JEROME ALPART, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued June 4, 1973
    Decided June 20, 1973.

      Before Judges Carton, Mintz and Seidman.

      Mr. Michael O. Rudolph argued the cause for appellants.

      Mr. Anthony L. Russo argued the cause for respondent {Messrs. Pett, Russo & Pett, attorneys).
   Per Curiam.

Plaintiff, the owner of a professional office building with 23 tenants, brought a summary action in the county district court to dispossess three occupants who were behind in the rent. Defendants answered, alleging in defense that because the landlord had breached the terms and conditions of the lease in failing to furnish essential services, the monies claimed were not owing. The rental money had been placed in escrow with defendants’ lawyer, who deposited it with the court.

At trial the judge ruled that he lacked jurisdiction to hear the equitable defense or the counterclaim which reiterated that defense. Judgment was entered in favor of plaintiff. Defendants’ application for a stay of judgment pending appeal was denied, plaintiff maintaining that the rental money was then needed to pay outstanding bills.

The tenants in the present case (an accountant, orthodontist, and employment agency) sought to raise the failure of the landlord to provide adequately functioning heating and air conditioning systems despite a specific covenant in the leases to do so. The judge below expressed sympathy with their plight but added, “I don’t think there’s anything that this Court at this stage can do. I think in the future we will be able to.”

The language in several recent landlord-tenant cases leads us to the conclusion that at least some nonresidental tenants may use equitable defenses in a summary dispossess action. See Reste Realty Corp. v. Cooper, 53 N. J. 444, 462-463 (1969); Marini v. Ireland, 56 N. J. 130 (1970); Kruvant v. Sunrise Market, Inc., 58 N. J. 452 (1971), mod. 59 N. J. 330 (1971). The present case is an appropriate one for the use of such defense since the “commercial tenants” are actually professional men renting relatively small premises for the delivery of personal services.

The judgment below is reversed and the matter remanded for hearing so that defendants may have the opportunity of adducing evidence with respect to the equitable defense and counterclaim.


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. JULIUS BLUE, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued April 24, 1973
    Supplemental memoranda submitted May 23 and June 4, 1973
    Decided June 21, 1973.

      Before Judges Kolovsky, Matthews and Crahay.

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

      Mr. Michael R. Perle, Deputy Attorney General, argued the cause for respondent (Mr. George F. Kugler, Jr., Attorney General of New Jersey, attorney).
   The opinion of the court was delivered by

Kolovsky, P. J. A. D.

Defendant, who had been employed as a guard at the Monmouth County Jail, was brought to trial on September 15, 1971 before Judge Conklin and a jury on a two-count indictment charging that he had, on or about October 30, 1970 : (1) stolen three revolvers belonging to the Monmouth County Jail, in violation of N. J. 8. A. 2A:119-2, and (2) received such revolvers, knowing them to have been stolen, in violation of N. J. 8. A. 2A:139-1. The jury found defendant guilty of receiving stolen property and not guilty of larceny. Defendant’s motion for a new trial was denied.

Defendant was sentenced to an indeterminate term to the Youth Correctional Institution Complex, with sentence suspended and probation imposed for a period of two years. The court further ordered him to pay a fine of $200 plus the costs of prosecution, payable during the probation period. (It should be noted that under State v. Mulvaney, 61 N. J. 202 (1972), decided after defendant was sentenced, the court was not authorized to require defendant to pay the costs of prosecution.) Defendant appeals.

Sometime during the weekend of October 30 to November 1, 1970 three revolvers were stolen from the gun room of the Monmouth County Jail. On December 3, 1970 Detective Kubaitis of Wall Township, responding to a report of an armed robbery, apprehended a man answering the description of the robber. The man, John Breeland, who was under the influence of narcotics, was found to be carrying a .38-caliber revolver bearing serial number 424211. According to Kubaitis, a teletype to a national information center revealed no information with respect to the revolver, but the next day, December 4, he talked to Breeland and ‘die told me that this weapon came from the Monmouth County Jail and he knew the subject who gave it to him but he did not wish to talk to me about this weapon at that particular time.” Kubaitis then called the county jail and learned that the weapon was one which had been stolen from the jail.

Almost five months later, on April 28, 1971, Breeland for the first time revealed the name of the person from whom he had allegedly obtained the revolver. In a written statement given that day to prosecutor’s Detective Manning he said that he had obtained the revolver from defendant Blue.

The testimony of the State’s witnesses other than Breeland indicated only that defendant had the opportunity to enter the gun room and remove revolvers therefrom. Breeland was the principal and critical witness against defendant.

Breeland, who had been in Eahway State Prison since January 1971 following revocation of his prior parole, began his direct testimony with a recital of his formidable prior criminal record and then told of his arrest by Detective Kubaitis. He didn’t remember talking to the detective about the weapon which was found on him.

According to Breeland, sometime in the middle of November 1970 defendant Blue, with whom he was acquainted, approached him on the street in Asbury Park, canning a brown paper bag, and asked whether he was “interested in some pistols.” Breeland was interested. He and Blue went around the corner and Blue showed him three pistols, asking $40 apiece for them. Blue told him that the pistols “were taken from the County Jail,” where he worked, explaining that “officers go out and take inmates sometimes, sometimes they take them to institutions or hospitals. They take weapons, supposed to be signed out. But it would not be signed out, therefore, they would have to be returned.” Breeland was given one revolver and promised to pay $40 for it, a promise which, according to Breeland, “was nothing but empty words” since he capitalized on his “nickel and dime reputation in Asbury Park” which caused people to fear him.

Breeland also testified on direct examination that he had been questioned from time to time by prosecutor’s detectives but had not revealed Blue’s name until he gave the written statement of April 28, 1971. His direct testimony continued with the following questions and answers:

Q. Let me ask you this: You have already been sentenced?
A. Yes.
Q. Did anybody make any promises to you? Did anybody make any deals with you in order to get you to reveal the name of the person who supplied the weapon you used in the robbery?
A. No. * *■ *

Breeland supplemented the last answer by describing a deal he had tried to make during the course of interrogations by the detectives which took place during the months prior to April 28, 1971.

During those interrogations, the detectives also sought to obtain information as to the whereabouts of the other two revolvers. Noting “how bad they wanted the pistols,” Breeiand sought “to make a deal with Captain Manning” of the prosecutor’s staff, saying that if he were put “on the streets” for 30 days and promised a sentence of not more “than two to throe at State’s Prison,” he would get the two pistols. He didn’t “get that deal”; the police obtained the other two pistols through someone else.

On cross-examination, in response to a suggestion by defense counsel that the statement of April 28, 1971 had been given as part of a “deal” involving Breeland’s pleas of guilty to charges against him, Breeland answered, “There was no deal.”

On redirect examination, Breeland explained that he had no “animosity or ill will” toward defendant but was testifying only because [defendant] is nothing to me but a cop * * *. If he had been anything other than a cop T wouldn’t be here.”

Defendant testified and denied involvement with the theft of the revolvers or the delivery of one of them to Breeland. Other witnesses testified as to his good reputation and in support of his contention that he had never been in charge of the gun room.

llecognizing that impeachment of Breeland’s credibility was essential to defendant’s case, defense counsel then called as a witness the probation officer who had interviewed Breeland in the course of his preparation of the presentence report which had been submitted to Judge McGowan who had sentenced Breeland.

Judge McGowan had permitted Blue’s attorney to see Breeland’s presentence report. Blue’s attorney sought to prove, through the probation officer, that Breeland had made statements contradictory to his trial testimony — most significantly, that Breeland had told the probation officer that there had been a “deal” between him and the prosecutor, who had agreed to make a recommendation as to the sentence to be imposed on Breeland.

It is clear that defendant Blue had the right to seek to establish that Breeland’s testimony was motivated by a desire to curry favor with the police and prosecuting authorities. As the court said in State v. Taylor, 49 N. J. 440 (1967) :

This Court has declared it to be proper for a defendant on trial to inquire on cross-examination of an accomplice who is testifying for the State against him, as to whether he is doing so to curry favor in the matter of his own prosecution, or because of a promise or expectation of a lenient sentence for himself. Such matters go to the witness’ interest in helping the State to achieve a conviction of the defendant on trial, and obviously are material to an evaluation of his credibility. State v. Curcio, 23 N. J. 521, 525-527 (1957) ; State v. Spruill, 16 N. J. 73, 78-81 (1954). Thus the State is under a duty when the matter is raised at trial not to conceal the existence of a promise of or agreement to recommend a specific sentence or leniency for an accomplice who is testifying for the State. Or, put affirmatively, it has the duty to disclose the arrangement when proper inquiry raises the question. See, Brady v. State of Maryland,, 373 U. S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). [at 447-448]

Although obviously cognizant of this rule, the court sustained the prosecutor’s objection and refused to permit the probation officer to testify, ruling that “the probation file is privileged.”'

The ruling was erroneous. Presentence reports prepared pursuant to B. 3 :21-2 are not “a matter of public record,” State v. DeGeorge, 113 N. J. Super. 542, 544 (App. Div. 1971), and normally should not be disclosed to anyone other than the court and counsel for the defendant to which it refers. Nevertheless, neither the cases nor any statute recognize the existence of a privilege which would foreclose a probation officer from testifying, as here, that statements made to him by Breeland contradicted what Breeland had testified to at the trial.

On the contrary, absent a privilege created by statute or case law, the confidentiality of the presentence report must yield to the right of a defendant to produce evidence in the hands of the state authorities bearing upon the truth of the issues involved in his case. State v. Cooper, 2 N. J. 540, 555-556 (1949) ; see also, Lakewood Trust Co. v. Fidelity and Deposit Co., 81 N. J. Super. 329, 341 (Law Div. 1963) : cf. Evidence Rule 36; State v. Oliver, 50 N. J. 39 (1967).

Moreover, even if the trial court’s ruling on the issue of privilege were correct, still there must be a reversal because of the State’s failure to reveal that in fact it had agreed with Breeland to recommend, and had recommended, a specific sentence in return for his promise to give a statement and to testify for the State. State v. Taylor, supra, 49 N. J. at 448.

Indeed, unless the assistant prosecutor who tried this ease — and who had not been present either when Breeland pleaded or when he was sentenced — had not been made aware of what transpired at those times, he went beyond mere failure to disclose (1) when he elicited, on direct examination of Breeland, a negative answer to his question,

Did anybody make any promises to you? Did anybody make any deals with you in order to get you to reveal the name of the person who supplied the weapon you used in the robbery?

and (2) when he told the jury in summation that there were no deals, emphasizing that Breeland had already been sentenced before he testified and hence had nothing to gain by his testimony.

Subsequent to oral argument we asked for and were furnished transcripts of the sentencing proceedings of September 3, 1971 before Judge McGowan and of the prior proceedings of April 27, 1971 before Judge Yaecarino, at' which Breeland, pursuant to a plea bargain, retracted his prior pleas of not guilty and pleaded guilty to the first counts of Indictments 398-70, 490-70 and 564M70. These counts respectively charged him with carrying a weapon without a permit, robbery and possession of cocaine.

The proceedings before Judge Yaecarino opened with a statement by an assistant prosecutor outlining the counts to which Breeland proposed to plead guilty and advising the court that the State would move at the time of sentence to dismiss the other counts of the indictments.

The prosecutor’s statement then continued:

As to sentencing, tlie State will recommend that any sentence the defendant receives in all three matters not be greater than six years nor less than four years, such sentences to be served consecutive with the sentence he is now serving but concurrent with the sentences which he will receive today in these three matters.
The State is stating this because it anticipates the cooperation from Mr. Breeland on other matters in our office, on other matters before the Court.

The State’s anticipation of “cooperation from Mr. Breeland” was speedily realized, for it was the very next day, April 28, 1971, that Breeland gave a written statement to the prosecutor’s detective, and for the first time named defendant Blue as the person who had given him the revolver.

At the time of sentence Breeland’s attorney noted that Breeland had “cooperated in other areas with the Monmouth County Prosecutor’s office” and that “through Ms efforts certain other people were brought to justice.” The court followed the prosecutor’s recommendations and imposed concurrent sentences whose effective total was four to six years, consecutive to the sentence Breeland was then serving. Further, in accordance with its agreement, the State moved for dismissal of the remaining counts of the indictments against Breeland.

There is no substance in the State’s suggestion that there was no duty to disclose the plea bargain, and in any event no prejudicial error because Breeland, having already been sentenced, had “nothing more to gain” by testifying for the State.

Nor is the State’s failure to comply with its duty to be excused or ignored because defense counsel — who unsuccessfully argued on his motion for a new trial that there should be a hearing to determine whether Breeland had made a deal with the prosecuting authorities — had failed to produce, at the trial, what the State, in its supplemental memorandum, labels the “best evidence,” viz., the transcript of Breeland’s plea and sentence hearings. Cf. State v. Vigliano, 50 N. J. 51, 60 (1967).

The judgment of conviction is reversed and the cause remanded for a new trial.