text:
    STATE OF NEW JERSEY, IN THE INTEREST OF D.A.M., JUVENILE-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted January 14, 1975
    Decided January 27, 1975.

      Before Judges Halpren, Crahay and Ackermah.

      Mr. Stanley C. Van Ness, Public Defender of New Jersey, attorney for appellant (Mr. Thomas A. Pavies, Assistant Deputy Public Defender, on the brief).

      Mr. J oseph P. Lordi, Essex County Prosecutor, attorney for respondent (Mr. Robert L. Martin, Assistant Prosecutor, of counsel).
   Per Curiam.

The juvenile, D. A. M., was adjudged a delinquent when he was found guilty by the trial judge of having committed an armed robbery. His motion for a new-trial was denied, and he was sentenced to a suspended indeterminate term to the Youth Reception and Correction Center at Yardville upon the condition that he attend High-fields.

He argues on this appeal that the adjudication of delinquency be reversed because:

Point I The court’s consideration of the juvenile’s failure to testify at the hearing as evidence of guilt violated the juvenile’s Fifth and Fourteenth Amendment right to remain silent and was plain error.
Point II The court’s undue participation in the conduct of the hearing and its prejudgment of the case deprived the juvenile of a fair and impartial trial.

We find no merit in the arguments advanced under Point II. The trial judge in this case properly exercised his discretionary power to interrogate witnesses when he had cause to doubt their veracity and sought to obtain a better understanding of the confusing testimony of defendant’s mother, brother and other State witnesses. State v. Riley, 28 N. J. 188 (1958), app. dism. 359 U. S. 313, 79 S. Ct. 891, 3 L. Ed. 2d 832 (1958), cert. den. 361 U. S. 879, 80 S. Ct. 166, 4 L. Ed. 2d 117 (1959); State v. Ray, 43 N. J. 19 (1964); Della Salla v. Hackensack Parking Authority, 30 N. J. Super. 534 (App. Div. 1954).

However, we find merit in the arguments made under Point I, and reverse. At the trial the victim, Edward Roper, was the State’s only witness, he testified that defendant was one of two men who had robbed him during the early evening of February 24, 1973. While defendant did not testify, his mother and sister-in-law testified that he was at his mother’s home during the time the robbery allegedly occurred.

We should also note, at this point that on the motion for a new trial defendant’s brother Dennis testified that he and Roy Bennett had robbed Roper • and that defendant was not involved. Dennis.had pled guilty to robbing Roper, but the charges - against him were dropped when he pled guilty to other crimes while confined to jail. In addition,’ Jessie Moore, who was unrelated to defendant, testified that he was with defendant at defendant’s mother’s home when the alleged robbery occurred.

In the process of rendering his oral opinion at the original hearing the trial judge said:

I also must take note of the fact that the juvenile has not taken the stand to deny any of the allegations in this matter and even though we cannot mention to a jury, I am sure the jury would have that in mind as to why an individual doesn’t deny any of the allegations made in a particular ease.

There was no objection to the trial judge’s remarks by counsel for defendant. Therefore, this ground of appeal will not be considered unless it qualifies as plain error, that is, the legal impropriety of the trial judge’s finding prejudicially affected the substantial rights of defendant and was sufficient grievous to justify notice by us and to convince us that of itself the error possessed a clear capacity to bring about an unjust result. R. 2:10-2; State v. Edge, 57 N. J. 580, 588-589 (1971); State v. Williams, 39 N. J. 471 (1963), cert. den. 374 U. S. 855, 83 S. Ct. 1924, 10 L. Ed. 2d 1075 (1963). The fact that a Juvenile Court judge sits without a jury does not give him carte Manche to comport himself other than with judicial self-restraint. Band’s Refuse Removal, Inc. v. Fair Lawn, 62 N. J. Super. 522 (App. Div. 1960), certif. den. 33 N. J. 387 (1960).

Our concern here is to afford defendant the same due process standards as is given to adults. In re Gault, 387 U. S. 1, 87 S. Ct. 1428, 18 L. Ed. 2d 527 (1968). Accordingly, we must enforce and apply the long established doctrine that an accused has the constitutional right to remain silent, and any comment suggesting that an adverse inference may be drawn from such silence, absent a clear showing of harmless error, requires a reversal. Griffin v. California, 380 U. S. 609, 85 S. Ct. 1229, 14 L. Ed. 2d 106 (1965) ; Malloy v. Hogan, 378 U. S. 1, 84 S. Ct. 1489, 12 L. Ed. 2d 653 (1964); State v. McElroy, 96 N. J. Super. 582 (App. Div. 1967), certif. den. 53 N. J. 512 (1969).

We have carefully considered, the aforementioned statement of findings by the trial judge and can reach no other logical conclusion but that he took into account defendant’s failure to testify in determining guilt contrary to the philosophy-pronounced in Griffin, supra. Our opinion is fortified by the fact that when he denied defendant’s motion for a new trial he again referred to the fact that defendant, although given the opportunity at the original trial to testify, failed to do so. We would be naive not to realize that even when juries are instructed that it is a defendant’s constitutional right to remain silent, and that his silence should play no part in their deliberations, that some juries do and will take his silence into account when weighing credibility. However, in a non jury case we would expect a trial judge to adhere to the mandate in Griffin and by his comments and findings not leave the issue open to doubt. When the trial judge here said, “I also must take note of the fact that the juvenile has not taken the stand to deny any of the allegations in this matter * * we are of the definite impression that since he was the fact finder, instead of a jury, that he also was taking defendant’s silence into account.

Finally, as previously indicated, the State’s case rested entirely upon Roper’s identification of defendant. In light of the alibi witnesses produced by defendant at his trial, and on his motion for a new trial, including his brother’s admission of guilt, we are unable to say that the trial judge’s statement and findings were incapable of producing an unjust result, or that they were harmless error.

Reversed and remanded for a new trial.


source: Caselaw Access Project

author: Crahay, J. A. D.

license: Public Domain

text:
    KELLY MURPHY, AN INFANT BY HER GUARDIAN AD LITEM, HAROLD MURPHY AND HAROLD MURPHY, INDIVIDUALLY, PLAINTIFFS-APPELLANTS, v. MOORESVILLE MILLS, A DIVISION OF BURLINGTON INDUSTRIES, INC., SAM LANDORF & CO., INC. DOING BUSINESS AS YOUNGLAND VENTURES, INC., AND BAMBERGER’S NEW JERSEY, A DIVISION OF R. H. MACY & CO., DEFENDANTS-RESPONDENTS, v. MOORESVILLE MILLS, A DIVISION OF BURLINGTON INDUSTRIES, INC., THIRD-PARTY PLAINTIFF, v. GENERAL MOTORS CORP., THIRD-PARTY DEFENDANT.
    Superior Court of New Jersey Appellate Division
    Submitted January 14, 1975
    Decided January 29, 1975.

      Before Judges Halpern, Crahay and Ackerman.

      Mr. Stephen S. Weinstein, attorney for appellants {Mr. Herbert M. Korn on the brief).
    No brief was filed for respondents.
   The opinion of the court was delivered by

Crahay, J. A. D.

This appeal is addressed to the propriety of counsel fee in a tort action in which a substantial settlement was procured for a seriously injured infant and her guardian ad litem.

Following a hearing approving the settlement plaintiffs’ counsel moved before the assignment judge for determination of a reasonable fee pursuant to R. 1:21—7(f). The application was for a fee representing 30% of plaintiffs’ net settlement. The assignment judge was of the opinion that the sought fee was fair, reasonable and proper but he questioned his authority to grant it on the ground that the relaxation provisions of R. 1:21-7 (f) may not apply to infant settlements.

Counsel fees in infant tort cases are governed by R. 1:21-7 "(Contingent Fees)” which provides, in pertinent part:

=:= * *
(c) In any matter where a client’s claim for damages is based upon the alleged tortious conduct of another, including products liability claims, * * * an attorney shall not * * * collect a contingent fee in excess of the following limits:
# * Sfr
(6) where the amount recovered is for the benefit of an infant * * * and the matter is settled without trial the foregoing limits shall apply except that the fee on any amount recovered up to $50,000 shall not exceed 25%.

The outer limits established on contingent fees are not absolute. R. 1:21-7 (f) provides that

(f) If at the conclusion of a matter an attorney considers the fee permitted by paragraph (c) to be inadequate, an application on written notice to the client may be made to the Assignment Judge for the hearing and determining of a reasonable fee in light of all the circumstances. * * *

See Amer. Trial Lawyers Ass’n. v. N. J. Supreme Cl., 126 N. J. Super. 577, 583 (App. Div. 1974), aff’d 66 N. J. 258 (1974).

We perceive nothing in the rule or in reason which would warrant limiting the rule’s relaxation provision to all contingent fee eases except those involving infants. It is significant that in structuring the rule the Supreme Court caused the relaxation provisions thereof, R. 1:21-7(f), to follow the limitation provisions, R. 1:21-7 (c) —• the former silent as to exceptions. The determinants of fee reasonableness, following an assertion of inadequacy, are “all the circumstances”. When the rule is read as a whole it evidences a clear intention to make all contingent fees, including those in infants’ tort eases, subject to increase with court approval in special cases.

The circumstances here need not be detailed at length. It is enough to note that the matter was a products liability case wherein infant plaintiff suffered serious burns. The factual and legal issues as reflected in the pretrial order were difficult and complex, involving a variety of disparate contending parties. The record supports a finding that counsel’s efforts were long, arduous and assiduous in achieving an excellent result for plaintiffs. We observe that, while not controlling, both the guardian ad litem, the infant’s father and her mother consented to the increased fee. The record amply supports the assignment judge’s conclusion that the sought fee was reasonable and would have been allowed by him except for his too narrow reading of the rule.

The matter is remanded to the trial court for further proceedings in conformity with this opinion.


author: Per Curiam.

text:
    STATE OF NEW JERSEY, IN THE INTEREST OF R. S., A JUVENILE.
    Superior Court of New Jersey Appellate Division
    Argued October 21, 1974
    Decided January 29, 1975.

      Before Judges Michels, Morgan and Kentz.

      Ms. Rosemary K. Reavy, Assistant Deputy Public Defender, argued the cause for the juvenile (Mr. Stanley C. Van Ness, Public Defender, attorney).

      Mr. Paul A. Massaro, Assistant Prosecutor, argued the cause for respondent State of New Jersey (Mr. Karl Asch, Union County Prosecutor, attorney).
   Per Curiam.

R. S. and another person were charged with being delinquent under N. J. S. A. 2A:4-14(m). The complaint alleged that they had violated N. J. S. A. 2A:170-38, unlawful taking or use of a means of conveyance.

R. S. was tried alone. Counsel stipulated that a certain car had been stolen and was being operated without the owner’s permission. When it was found a companion of R. S. was driving it and R. S. was seated in the passenger seat. There was no evidence of how the theft occurred or whether R. S. knew that the car was stolen. R. S. was “continued on probation” and fined $25.

Counsel argued that the State had failed to prove that the juvenile had unlawfully taken or used the car. The judge acknowledged that had the charge been made under N. J. S. A. 2A:139-3 (the receiving a stolen auto statute), it would have been insufficient to show only that R. S. was a passenger without showing that he knew the car to be stolen. State v. Serrano, 53 N. J. 356, 359 (1969). He ruled, though, that it was unnecessary to show such knowledge to prove a violation of the disorderly person statute involved here.

N. J. S. A. 2A:170-38 reads:

Any person who unlawfully takes or uses any means of conveyance, or is an accessory thereto, is a disorderly person.

There was no proof that R. S. “took” the car, so that he could be found in violation of the statute only if his conduct constituted an unlawful “use” of the car within the meaning of the statute. The precise issue is whether a passenger’s mere presence in a stolen car, absent any proof of his knowledge that it was stolen, constitutes unlawful use.

At common law it was essential to prove both an unlawful act and an evil intent or mens rea of some kind. State v. Gibson, 92 N. J. Super. 397, 399 (App. Div. 1966). But it is now recognized that in some areas the danger to the public is so great and the field involved is so widely regulated that the Legislature can declare a certain act unlawful without proof of mens rea or its equivalent. State v. Hatch, 64 N. J. 179, 184-185 (1973). Examples are the violation of gun control laws (State v. Hatch, supra); possession of lottery paraphernalia (State v. Lobato, 7 N. J. 137, 150 (1951)) and statutory rape (State v. Moore, 105 N. J. Super. 567, 571 (App. Div. 1970)).

Criminal statutes must be strictly construed. State v. Carbone, 38 N. J. 19 (1962). We can find nothing in this statute whidh indicates a legislative intent to punish mere use of a car by a passenger, absent proof of mens rea or its equivalent.

The State argues, however, that the evidence of the juvenile’s presence in the stolen car as a passenger during the early morning hours distinguishes this case from State v. Serrano, supra, and provides the basis for an inference that the juvenile knew the ear to have been a stolen one. In support of this proposition reference is made to that portion of State v. DeSimone, 60 N. J. 319, 323 (1972), in which the court observed the improbability of one who is embarked on a criminal venture inviting an innocent person into the car who may later act as a witness against him. That case, however, dealt only with the issue of probable cause as the basis for a search, and the court clearly disclaimed any intention of passing upon the sufficiency of such evidence for jury consideration. The facts alleged to distinguish this ease from State v. Serrano do not have that effect.

Since there was no proof whatever in this case that the juvenile knew that the ear in which he was riding was a stolen one, we find that there was insufficient evidence present in the record to uphold the finding that, beyond a reasonable doubt, R. S. had committed a violation which rendered him delinquent. State v. Johnson, 42 N. J. 146, 162 (1964); In re Winship, 397 U. S. 358, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970). For the same reasons there was no basis for a finding that he was an accessory to the driver.

We also note that the juvenile correctly claims that it was unlawful to impose a $25 fine on him. State in the Interest of M. L., 64 N. J. 438, 444 (1974).

Reversed.


text:
    MILDRED S. BLUM, PLAINTIFF-APPELLANT, v. THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued January 14, 1975
    Decided February 5, 1975.
    Before Judges Matthews, Fritz and Botter.

      Mr. Henry J. Gatenacci argued the cause for appellant (Messrs. Podvey & Sachs, attorneys).

      Mr. Garrett E. Broivn, Jr. argued the cause for respondent (Messrs. Stryker, Tams & Dill, attorneys).
   Per Curiam.

The trial judge entered summary judgment holding that plaintiff is not entitled to an additional $10,000 in coverage on the life of her deceased husband because he was not “actively at work on full time” on April 1, 1969, the date that the increase in insurance went into effect on a group policy. We concur.

In 1947 defendant issued a group insurance policy to the trustees of the American Institute of Certified Public Accountants Insurance Trust. The policy afforded life insurance benefits of $10,000, later increased in 1954 to $20,000. Prior to his death Max L. Blum was a senior partner in an accounting firm and was insured under that policy. His wife, plaintiff herein, was the designated beneficiary for death benefits.

By amendment effective April 1, 1969, entered into between defendant and the successor trustee of the aforesaid trust, the life insurance coverage was increased to $30,000, subject to the conditions contained in said group policy amendment. Paragraph III(ii) of said amendment provides that the increase in insurance shall not apply:

* * * in the case of an Employee who was insured under the Policy on March 31, 1969, and who is not actively at work on full time on April 1, 1969, until return to work on full time (a retired Employee shall he deemed to be actively at work on full time when he is not in medical confinement.)

Paragraph II.2. of the amendment defines a full-time “Employee” who is a partner or proprietor as one who “devotes at least thirty hours per week to the conduct of the business of the proprietorship or partnership.” A notice to participating firms in early 1969 described the new benefits available for an additional premium and advised further that the increase in insurance becomes effective for personnel “only if actively at work; otherwise such insurance becomes effective on the day of return to active work.” The notice also stated that retired partners who are insured will receive the additional insurance “only if the individual is not confined for medical or surgical purposes.” The notice specified that the “Plan as formally adopted and policies issued thereunder to the Trustee will control.”

Eor a number of years before his death Blum had a heart ailment, and for that reason he and his wife lived in Elorida for three or four months each winter. Since his firm’s office was in Hew Jersey, the last time he was in his office during the winter of 1968-69 was in October 1968, before leaving for Elorida. While in Elorida his work consisted of telephone conferences and some conferences at his apartment with clients who were also in the Miami area, according to the testimony of Mrs. Blum. She testified that she served lunch while they were talking business and then she would “shoo them out when I felt it was too much for him.”

In a deposition Mrs. Blum testified that on March 30 or 31, 1969, she and her husband returned from Elorida to see his doctor in Hew York. Blum spent about one hour at home on the morning of March 31 conferring with his managing partner. He saw his doctor in Hew York in the afternoon of March 31, returned home, and then, later in the afternoon, was taken by ambulance to a hospital in Hewark. He was immediately placed in the intensive care unit. His wife stated she did not know if he was conscious, since she was allowed to see him for only five minutes each hour and was not permitted to talk to him. He remained in that condition until the next day, April 1, 1969, when at 4:30 p.m. he died. ' ' ’

In these circumstances it .is clear that Blum was not “actively at work on full time on April 1, 1969,” as required^ by'the'group policy amendment: Defendant • has not contended that Blum failed to satisfy the 30-hour a week “full time” requirement; simply that he was not “actively at work” on the critical date. The contention of appellant is that Blum qualified since he was still an active member of his accounting firm, doing executive work, in the general time period prior to his death. Appellant contends that the phrase “actively at work” may mean different things in different situations; that it is ambiguous; that as a phrase of limitation it should be construed strictly against the insurer, citing Butter v. Bormer & Barnewall, Inc., 56 N. J. 567, 576 (1970), and that the objectively reasonable expectation of the policyholder (Bryan Const. Co. v. Employers’ Surplus Lines Ins. Co., 60 N. J. 375, 377-378 (1972), aff’g in part and rev’g in part 116 N. J. Super. 88 (App. Div. 1971)), compels a finding of additional coverage.

Defendant paid the $20,000 benefit which was applicable prior to April 1, 1969. We agree that defendant was not obliged to pay the additional coverage since it did not apply to an employee who was disabled and in confinement, and therefore not “actively at work” on the date the amendment became effective. Even retired employees would receive the additional coverage so long as they were not “in medical confinement” on the crucial date. These two phrases contained in paragraph III(ii), “actively at work” as to working employees and “not in medical confinement” as to retired employees, make it clear that the intent was to exclude one, who, as here, is still in active service generally, but who on the effective date is not actively working, is not physically capable of working and who is confined to a hospital. We doubt that this reading of the phrase “actively at work” would disappoint the reasonable expectations of someone who seeks to obtain coverage under a group policy without prior medical examination. It is not unreasonable for an insurer to exclude such individuals from coverage “until return to active work on full time,” as provided in paragraph III(ii).

While the phrase “actively at work” has not been construed in any reported New Jersey case called to our attention, our holding accords with cases in other jurisdictions. Boyer v. Travelers Ins. Co., 7 Cal. 2d 615, 61 P. 2d 925 (Sup. Ct. 1936), holding that a hospitalized employee, in an oxygen tent, not doing and unable to perform some of his normal duties, is not “actually at work” on the effective date; Elsey v. Prudential Ins. Co., 262 F. 2d 432, 435 (10 Cir. 1958), defining “actively at work” to mean “actually on the job and performing the employee’s customary work”; Jackson v. Metropolitan Life Ins. Co., 34 Ohio St. 2d 138, 296 N. E. 2d 679 (Sup. Ct. 1973); Williams v. Metropolitan Life Ins. Co., 448 S. W. 2d 295 (Mo. App. 1969); Marshall v. Connecticut General Life Ins. Co., 371 S. W. 2d 363 (Mo. App. 1963). Cf. Commercial Ins. Co. of Newark v. Burnquist, 105 F. Supp. 920 (N. D. Iowa 1952) ; White v. Great American Reserve Ins. Co., 342 S. W. 2d 793 (Tex. Civ. App. 1961).

We do not consider persuasive, primarily because of distinctions in the facts or the issues, certain cases cited by appellant, namely, Great-West Life Assur. Co. v. Levy, 382 F. 2d 357 (10 Cir. 1967); Equitable Life Assur. Soc. v. Worthman, 67 F. 2d 721 (7 Cir. 1933), and Morris v. Mutual Benefit Life Ins. Co., 258 F. Supp. 186 (D. C. Ga. 1966). The issue here is not averaging out the work-week, nor the type of work or the place of its performance, nor whether an employee is covered if he is on vacation on the effective date. The insurance company accepts the risk of all employees in the group regardless of their condition of health with certain narrow exceptions. To hold that the exception does not exclude an “Employee” in Mr. Blum’s condition on April 1, 1969 would strip the provision of virtually all meaning. See Boyer, supra, 61 P. 2d at 927.

Affirmed.


author: Milmejj, J. S. C.,

text:
    ARLETHIA JONES, PLAINTIFF-APPELLANT, v. JAMES BUFORD, DIRECTOR OF HEALTH AND WELFARE, AS AGENT FOR ROY L. MANAGEMENT CORPORATION, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued January 13, 1975
    Decided February 5, 1975.

      Before Judges Michels, Morgan and Milmed.

      Mr. James B. Ventantonio argued the cause for appellant (Mr. Stanley Yaron, attorney on the brief).

      Mrs. Zulima Y. Farber argued the cause for respondent (Mr. Milton A. Buck, Corporation Counsel of the City of Newark, attorney).
   The opinion of the court was delivered by

Milmejj, J. S. C.,

Temporarily Assigned. Plaintiff, a tenant in an apartment building in Newark owned by Eoy L. Management Corporation, appeals from the denial by the Law Division of her claim for relief under N. J. S. A. 26: 3-31, subsection (p). The court there held that it was “without jurisdiction to compel the relief prayed for by the plaintiff.” We accelerated the time schedule of the appeal pursuant to R. 2:9-2.

The facts are not in dispute. Plaintiff is a tenant in the apartment building located at 448 Eairmount Avenue in Newark. She seeks the furnishing of heat and hot water to her apartment in accordance with the terms of her tenancy. To this end she seeks to compel defendant to act as agent for the landlord to engage repairmen and order parts necessary to restore the boiler at the premises to operating condition, the repairmen and materialmen to bill the landlord directly for the costs and to file a notice, approved by defendant, with the county clerk, resulting in a lien on the premises in their favor, all pursuant to N. J. S. A. 26:3-31(p).

On and after October 1, 1974 plaintiff notified the landlord, Eoy L. Management Corporation, that there was no heat and no hot water in the building because the boiler at the premises was broken. She also informed the Division of Inspections of the Department of Health and Welfare of the City of Newark of the situation. An inspection was made; the boiler at the premises is broken; the landlord claims that it is financially unable to make the necessary repairs; although the outside air temperature has been under 55° E., no heat or hot water has been provided and no action to remedy the situation has been taken by the landlord or defendant Director of Health and Welfare. At the time of the hearing in the Law Division plaintiff was the only tenant in the building who was current in the payment of rent.

Defendant contends that the provisions of N. J. S. A. 26: 3-1 et seq. are not applicable to him; that his authority is derived from the City Council of Newark in accordance with the provisions of the Faulkner Act, N. J. S. A. 40: 69A-1 et seq. ; that he “is empowered merely to recommend enactment, alteration or amendment of ordinances”; that the powers of a local board of health to adopt ordinances, as set forth in N. J. S. A. 26:3-31, are discretionary only; that the Newark Department of Health and Welfare has not adopted any ordinance on the subject set forth in N. J. S. A. 26:3-31(p); and that, accordingly, plaintiff is not entitled to the relief which she seeks.

We find no merit in defendant’s contention. As pointed out in Myers v. Cedar Grove Tp., 36 N. J. 51 (1961) :

* * * it is essential that there be in every municipality a body charged with the duty of enforcing the substantive provisions of the general law, Title 26. See N. J. S. A. 40:69A-26. However, N. J. S. A. 26 :1-1 and N. J. S. A. 26:3-1 provide that such body need not be an autonomous board of health, [at 61-62]

N. J. S. A. 26 :1A-1 defines the terms “local board” or “local board of health” as used in the legislation establishing the State Department of Health in the Executive Branch of the State Government, L. 1947, c. 177, as amended, N. J. S. A. 26 :1A-1 et seq., as follows:

“Local board” or “local board of health” means the board of health of any municipality or the hoards, bodies or officers in such municipality lazofully exercising aziy of the powers of a local hoard of health ztnder the lazos governing such municipality, and includes any consolidated local board of health or county local board of health created and established pursuant to law. [Emphasis supplied]

N. J. S. A. 36:3-1 provides that:

There shall be a board of health in every municipality in this State, except in those municipalities which are included within a consolidated local health district, or a county local health district, which board shall consist of members appointed or designated, or both, as provided by this chapter, except that in any municipality operating •under lazos establishing a form of government for such municipality ztnder which the full pozoers of a local hoard of health can not be exercised by a local hoard of health so appointed or designated, the respective functions of a local hoard of health shall he exercised by such hoards, bodies, or officers as may exercise the same according lo lazo. [Emphasis supplied]

The pertinent provisions of N. J. S. A. 26 :3-31 read as follows :

The local board of health shall have power to pass, alter or amend ordinances and make rules and regulations in regard to the public health within its jurisdiction, for the following purposes:
in. To require in buildings, designed to be occupied, or occupied, as residences by more than two families and when the owners have agreed to supply heat, that from October 1 of each year to the next succeeding May 1, every unit of dwelling space and every habitable room therein shall be maintained at least at 68° F. whenever the outside temperature falls below 55° during daytime hours from 0 a.m. to 11 p.m. At times other than those specified interiors of units of dwelling space shall be maintained at least at 35° F. whenever the outside temperature falls below TO0.
In meeting the aforesaid standards, the owner shall not be responsible for heat loss and the consequent drop in the interior temperature arising out of action by the occupants in leaving windows or doors open to the exterior of the building. The owner shall be obligated to supply required fuel or energy and maintain the heating-system in good operating condition so that it can supply heat as required herein notwithstanding any contractual provision seeking to delegate or shift responsibility to the occupant or third person, except that the owner shall not be required to supply fuel or energy for heating- purposes to any unit where the occupant thereof agrees in writing to supply heat to liis own unit of dwelling space and the said unit is served by its own exclusive heating equipment for which the source of heat can be separately computed and billed.
p. To act as the agent for a landlord in the engaging of repairmen and the ordering of any parts necessary to restore to operating condition the furnace, boiler or other equipment essential to the proper heating of any residential unit rented by said landlord, provided, however, that- at least 24 hours have elapsed since the tenant has lodged a complaint with the local board of health, prior to which a bona fide attempt has been made by the tenant to notify the landlord of the failure of the heating equipment, and the landlord has failed to take appropriate action, and the outside air temperature is less than 55° F.
Any person who supplies material or services in accordance with this- section shall bill the landlord directly and by filing a notice approved by the-local board of health, with the county clerk, shall have a lien on the premises where the materials were used or services supplied.

The provisions of N. J. S. A. 26 :3—31 are applicable to the City of Newark, N. J. S. A. 40 :69A-26 and N. J, S. A. 40:69A-28, a municipality within the exception clause of N. J. S. A. 26:3-l. In such municipality the functions of a local board of health are to be “exercised by the appropriate officials under the laws governing” the municipality, Myers v. Cedar Grove Tp., supra, 36 N. J. at 58, including its department of health and welfare and the director thereof. Revised Ordinances of the City of Newark, New Jersey (1966), § 2:10-1 et seq.

The power expressed in N. J. S. A. 26:3-31 (p) is clearly administrative (as distinguished from legislative) in nature. The grant of that power is of a mandatory character. The public interest in the health, safety and welfare of tenants of residential units requires such construction, and “no clear legislative intent to the contrary appears from the context of the Act.” Como Farms, Inc. v. Foran, 6 N. J. Super. 306, 311 (App. Div. 1950); and see, Clark v. Elizabeth, 61 N. J. L. 565, 581 (E. & A. 1898); Fagan v. Hoboken, 85 N. J. L. 297, 299 (E. & A. 1913). “The intention emerges from the spirit and policy of the statute rather than the literal sense of particular terms.” Caputo v. The Best Foods, 17 N. J. 259, 264 (1955). It is apparent from the nature and scope of the legislation that the Legislature intended that the members of the residential renting public, for whose protection the statute was enacted, should have the right to have the power thus conferred, exercised for their benefit.

A grant of power to public officers, where individuals or the public have a right that it be exercised for their benefit, is mandatory * * * * [2A Sutherland, Statutory Construction (4th ed., Sands, 1973) § 57.17 at 441.)

See also, Bayonne v. North Jersey, etc., Comm’n., 30 N. J. Super. 409, 417-419 (App. Div. 1954); Harvey v. Essex Cty. Bd. of Freeholders, 30 N. J. 381, 391-392 (1959); 67 C. J. S., Officers, § 113, p. 399.

The Plaintiff is, accordingly, entitled to the relief sought in the complaint which she filed in the Law Division, i. e., enforcement of the provisions of N. J. S. A. 26 :3-31(p) insofar as the}*' relate to the broken boiler in the subject premises. The order denying that relief is reversed and the matter is remanded to the Law Division for the entry of an appropriate order in accordance with this opinion.

      Newark is governed by the “mayor-council plan C” form of government under the Optional Municipal Charter Law, commonly referred to as the Faulkner Act (L. 1950, c. 210; N. J. S. A. 40:69A-55 et seq.)

      Section 2:10-2(b) of these Revised Ordinances requires the Director of Health and Welfare, the head of the Newark Department of Health and Welfare, “Through the departmental divisions and otherwise,” to, among other things: “(2) Enforce housing laws and housing ordinances, and administer related inspections,” and “(5) Administer state laws and ordinances relating to public health.” Section 2:10-4 of the Revised Ordinances, as amended, requires the Division of Health in the Department to, among other things, “(a) Administer statutes and ordinances conferring functions, powers and duties upon a board or department of health or a local health officer,” and “(b) Enforce statutes and ordinances ensuring a healthful environment and related inspections.”

      Newark ordinances on the subject of N. J. S. A. 26 :3-31, subsection (m) have been part of “the housing code” of the city (e. g., Revised Ordinances, op. cit., §§ 15:4-10, 15:4-13 and 15 :4-14, as amended) since before the enactment of subsection (m) in its present form by L. 1971, c. 360, § 1, effective December 21, 1971. Consequently, all that is at issue here is the fulfillment of the ministerial function expressed in N. J. S. A. 20:3-31 subsection (p), for which no ordinance is required. Whether or not powers conferred in other subsections of the statute are legislative and accordingly discretionary is of no moment in the construction of subsection (p).


text:
    ESTELLE WOLINER, PLAINTIFF-RESPONDENT, CROSS-APPELLANT, v. JACK WOLINER, DEFENDANT-APPELLANT, CROSS-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued January 13, 1975
    Decided February 10, 1975.

      Before Judges Michels, Morgan and Milmed.

      Mr. Neil Braun argued the cause for appellant-cross-respondent (Messrs. Rudd and Ackerman, attorneys).

      Mr. Ernest Prupis argued the cause for respondent-cross-appellant (Messrs. Weltchek, Prupis & Ritz, attorneys).
   Per Curiam.

Plaintiff wife instituted the present action pursuant to N. J. S. A. 2A :34-23, seeking support from defendant who, at the time the suit was instituted was still her husband. The parties were first married in 1937 and divorced in 1950. They remarried in 1955 and again became divorced approximately a month after the present suit was instituted, by a decree of divorce entered in the State of California awarded the husband. The California judgment was based upon constructive service of process upon plaintiff, who at all times pertinent to this suit, was a resident of the State of New Jersey. Both parties lived in New Jersey during most of their marital life. Plaintiff wife never personally appeared in the California proceeding and the judgment of divorce expressly avoids any adjudication with respect to property rights. Nor does the decree purport to affect any right plaintiff may have to alimony or support from her former husband.

Ten days after filing the complaint plaintiff sought and obtained a writ of attachment on the ground that defendant was a resident of the State of Texas or the State of California, or was an absconding debtor. Thereafter, a levy was made by the Sheriff of Mercer County on all the right, title and interest of defendant to surplus cash (proceeds from a foreclosure proceeding) on deposit with the Clerk of the Superior Court.

Eollowing entry of a consent order on October 18, 1972 vacating defendant’s default and permitting him to file a responsive pleading, his answer and general appearance to the complaint were filed. Plaintiff’s application for pendente lite support was denied, as was defendant’s application for summary judgment, interposed on the theory that entry of the California divorce after the filing of plaintiff’s complaint for maintenance deprived New Jersey of jurisdiction to award support to plaintiff.

On May 4, 1973 plaintiff moved for an order permitting her to amend her complaint to include a request for equitable distribution of the marital estate (pursuant to N. J. S. A. 2A:34-23) on the basis of the California judgment of divorce. This application was also denied on the ground that N. J. S. A. 2A:34-23 applied only to divorces obtained in New Jersey and that equitable distribution was not available to one who had been divorced by a foreign decree.

Accordingly, the only issue upon which testimony was received concerned the amount of support, if any, to which plaintiff was entitled. Judgment was entered in favor of plaintiff awarding her $350 a month as support, retroactive to the date the complaint was filed, July 10, 1972. The support for the period from July 10, 1972 to October 10, 1973 was payable from the sum of $5,250 held by the Clerk of the Superior Court, subject to the writ of attachment which was previously entered in the case. Counsel fees in the amount of $3,750 to plaintiff’s counsel, together with costs and disbursements, were ordered to be paid by defendant. Defendant appeals, contending that the awards of support and counsel fees were manifestly excessive. Plaintiff cross-appeals, contending that the trial court erroneously denied her application to amend the complaint to assert a claim of equitable distribution.

Por reasons which will become apparent later, we deal first with the issue raised by plaintiff’s cross-appeal from the denial of her right to equitable distribution. The right to equitable distribution of property legally and beneficially acquired by the marital parties during the marriage is a creature of statute created by the 1971 amendment to N. J. S. A. 2A:34-23. The provision reads as follows:

In all actions where a judgment of divorce or divorce from bed and board is entered the court may make such award or awards to the parties, in addition to alimony and maintenance, to effectuate an equitable distribution of the property, both real and personal, which was legally and beneficially acquired by them or either of them during the marriage.

Defendant points out that the initial portions of § 23 which provide for the payment of alimony or maintenance of the wife and children are expressly made applicable to matrimonial actions “brought in this State or elsewhere, or

after judgment of divorce or maintenance, whether obtained in the State or elsewhere * * *.” Accordingly, defendant contends that the absence of similar language in the provision relating to equitable distribution compels the conclusion that a foreign divorce cannot be the occasion for an order equitably distributing marital assets. According to defendant, had the Legislature intended to confer such power on the courts, it would have expressly provided for that power as it did with respect to awards of alimony and support.

We disagree. Nothing in the language of the provision authorizing equitable distribution of marital assets suggests that its applicability depends upon the place where the divorce was obtained. On the contrary, the language employed is all-inclusive, extending the right of equitable distribution to “all actions” in which a judgment of divorce is entered. A valid divorce rendered in a sister state is, under the Pull Paith and Credit Clause of the Federal Constitution, recognized as a valid divorce in the State of New Jersey. Meeker v. Meeker, 52 N. J. 59 (1968). Had the Legislature intended such a restriction upon the jurisdiction of the court to equitably divide marital property, it would not have been difficult to express such limitation in concise terms. Moreover, the provision would not have been included, by way of amendment, in the provision for alimony and support which, by express language, negatives any such limitation.

The provision we are now considering is the last paragraph of N. J. S. A. 2A:34--23. The first paragraph of this section is a carryover from prior law with the one change making alimony and support available to either party, instead of restricting its availability to the wife. It authorizes the award of alimony, support and maintenance to either party, and also concerns itself with matters of custody, maintenance and education of any children of the marriage. The second paragraph sets forth standards to be applied by the court in determining the amount of alimony or maintenance to be awarded and specifically permits alimony to be awarded to either party. The third paragraph creates the right to equitable distribution.

The initial portions of the first paragraph of § 23 expressly authorizes awards of alimony and custody where the divorce was procured from a sister state. It provides:

Pending any matrimonial action brought in this State or elsewhere, or after judgment of divorce or maintenance, whether obtained in this State or elsewhere, the court may make such order as to the alimony or maintenance of the parties ^ * * as the circumstances of the parties and the nature of the ease shall render fit. reasonable and just * *' *

The initial portions of the second paragraph setting forth standards for the guidance of the courts in making such awards does not contain the identical language. The language used, however, is broad and all-inclusive. It provides:

In all actions brought for divorce * * * the court may award alimony to either party * * *

The next few sentences of the second paragraph, each of which contains a specific standard to guide courts in granting alimony, each commences with the phrase, “In all actions for divorce.”

Clearly, this all-inclusive language, used in the second paragraph of § 23, refers to the language used in the opening of the first paragraph. Thus, the standards for the granting of alimony set forth in the second paragraph should be applied where the divorce was obtained outside the State of New Jersey or after a divorce, wherever obtained. No one would seriously contend that the standards governing awards of alimony should only be applied with respect to New Jersey divorces. This language was added in 1938 by L. 1938, c. 235, § 1; R. S. 2:50-37. Compare Hughes v. Hughes, 125 N. J. Eq. 47 (E. & A. 1939), with Levy v. Levy, 17 N. J. Misc. 324, 9 A. 2d 779 (Ch. 1939).

Similar language is used to describe the availability of equitable distribution in the third paragraph of § 23, and thus this language, too, refers back to the opening language of the first paragraph of that section. Hence, a foreign divorce may serve as the basis for an equitable division of marital property in addition to a grant of alimony or maintenance, and we so hold.

The three paragraphs of § 23 must be read in pari materia. The two last paragraphs and the change in the first paragraph concerning a husband’s eligibility for alimony, were adopted together, and although only the last paragraph provides for equitable distribution, alimony and maintenance is referred to in all three. Nothing in any of the language used in any of the three paragraphs suggests the legislative intent to vary the availability of the various incidents to a divorce provided for in § 23.

The interpretation of the equitable distribution provision being adopted by this court does not offend the essential public purposes this provision was designed to serve. The provision concerning equitable distribution was adopted to protect the receiving spouse from the hazards inherent in a grant of alimony, such as future financial misfortune of the paying spouse or his or her demise. “An allocation of property to the wife at the time of the divorce is at least some protection against such an eventuality.” Rothman v. Rothman, 65 N. J. 219, 229 (1974). Moreover, this discerned purpose indicates that distribution is a supplement to the right to alimony, another financial incident to a divorce, available wherever alimony is available to the extent deemed just by the court. Another purpose for the allowance of equitable distribution on divorce

* * * [is in its] recognition to the essential supportive role played by the wife in the home, acknowledging that as homemaker, wife and mother she should clearly be entitled to a share of family assets accumulated during the marriage. [Rothman v. Rothman, supra]

An award to the wife of her equitable share of marital property should not be denied simply because the marriage was terminated in another state or before action therefor is commenced, particularly where the statute creating that right does not clearly require such an anomalous result. Slapp v. Slapp, 143 Ohio St. 105, 54 N. E. 2d 153 (Sup. Ct. 1944).

Adoption of defendant’s position would, in our view, subvert the essential goals of this provision. A husband of wealth, for example, by the simple expedient of obtaining a foreign divorce "on a bona fide change of domicile (feasible where the marital estate is a large one) could deprive the wife of a long-continuing marriage, a New Jersey domiciliary, of her acknowledged right to a division of the marital estate. Her ineligibility would persist even should the husband eventually return to New Jersey at some time in the future. The irrationality of this possibility persuades us that the Legislature never intended this result.

In the present case the marriage was a long-persisting one. The parties had lived together, during the course of two separate marital relationships, for a total of 30 years. During most of this period both were domiciliaries of the State. The wife still is. She is presently a New Jersey welfare recipient. New Jersey’s interest in a domiciliary wife, so destitute that she is eligible for welfare assistance, is manifest, and we are not persuaded that in these circumstances she should be denied her fair share of the marital estate simply because the divorce was obtained in California and before she could obtain leave to amend her complaint to demand her share of the marital property.

Because of our view that the trial court erred in denying plaintiff’s application for leave to amend her complaint to seek equitable distribution, requiring a remand in order that this may be accomplished and a hearing conducted thereon, it becomes unnecessary1' for us to consider the issue raised by defendant’s appeal, that the amount of alimony awarded was excessive in light of his present financial resources, although we are generally satisfied with the allowance made. Nonetheless, because of the interrelationship of property distribution and the award of alimony, the provision in the order being appealed from concerning the latter will also be considered reopened for such review, if any, as the trial court may deem appropriate. Painter v. Painter, 65 N. J. 196 (1914).

Plaintiff is currently receiving no support whatever. The trial court order awarding plaintiff $350 a month as permanent alimony has not, however, been stayed and therefore continues in full force and effect pending disposition of this case on remand. Payment of the support so ordered shall be made first out of the sum of money held subject to the original attachment, which also continues in full force and effect.

We affirm the order for counsel fees allowed below as reasonable. In fixing any counsel fees for the proceedings on remand the trial court should consider that the extent of the reconsideration of the case on the remand called for by this opinion is not attributable to any fault of defendant or his counsel and that an amount which would otherwise be reasonable should be moderated accordingly.

There will be no costs or counsel fee on this appeal except that defendant is ordered to pay plaintiff’s actual disbursements herein.

The judgment is modified to the extent indicated above and the cause is remanded for further proceedings consistent with this opinion.


text:
    CHELL FRANTZEN, PLAINTIFF-APPELLANT, v. LESLIE C. HOWARD, BUILDING INSPECTOR AND ZONING OFFICER, BOARD OF ADJUSTMENT OF THE BOROUGH OF CHATHAM, NEW JERSEY, MAYOR AND BOROUGH COUNCIL OF CHATHAM, NEW JERSEY, DEFENDANTS-RESPONDENTS.
    Superior Court of New Jersey Appellate Division
    Submitted February 4, 1975
    Decided February 13, 1975.

      Before Judges Haepern, Crahay and Ackerman.

      Mr. Arnold Miller, attorney for appellant.

      Mr. Charles W. Foster, attorney for respondents Board of Adjustment and Leslie Howard.

      Messrs. Sticlcel, Frahn & Stockholm, attorneys for respondents Mayor and Borough Council of Chatham.
   Per Curiam.

In this zoning case, wherein plaintiff unsuccessfully sought a “c” variance (N. J. S. A. 40 :55-39 (c)) to construct a dwelling on an undersized lot, the record reveals that there remains unresolved by the trial court an important issue regarding the constitutionality of a relevant ordinance.

It is manifest on this record that there has been no final judgment by disposition of all the litigated issues between the parties. R. 2:2-3 (a). Plaintiff had no right to appeal the adverse portions of the incomplete judgment without leave of this court. R. 2 :2—4; Haelig v. Mayor, etc., Bound Brook, 105 N. J. Super. 7 (App. Div. 1969).

In the past we have, on occasion, granted leave to appeal nunc pro tunc where extraordinary circumstances and the interests of justice warranted it. See Kerr v. Kerr, 129 N. J. Super. 291, 293 (App. Div. 1974); Butler v. Buenaga, 107 N. J. Super. 80 (App. Div. 1969). This record, however, does not allow for such an indulgence. We cautioned in Butler that thereafter nunc pro tunc relief would not be idly granted and reminded respondents of their responsibility to the court to timely move to dismiss such “appeals.”

Here, we perceive no compelling exigencies in the issues constraining us to turn to them. We say again that the grant of leave to appeal nunc pro tunc is most extraordinary relief and that the haphazard employment of it can have but a deleterious impact on appellate practice and the overall administration of justice. Piecemeal reviews, ordinarily, are anathema to our practice, as expressed in the rules which require the final disposition of all issues at one hearing on the trial level followed by orderly appellate review. The interruption of the litigation at the trial level, by the taking, as here, of an unsanctioned “appeal”, disrupts the entire process and is wasteful of judicial resources.

Wot dissimilarly, our Supreme Court has strongly disapproved of direct appeals to it where the record bespoke that the proper appellate avenue was by petition for certification. R. 2:2-1; in In re East Windsor Mun. Util. Auth. v. Shapiro, 57 N. J. 168 (1970), cert. den. 401 U. S. 1010, 91 S. Ct. 1256, 28 L. Ed. 2d 546 (1971), the appellant sought to appeal as of right from a unanimous opinion of the Appellate Division claiming a substantial constitutional issue. The appeal was dismissed, Justice S'chetfcino concluding:

Defendant’s constitutional points are palpably insubstantial. There was no right of appeal. Defendant was required to petition for certification. Had that course been taken, the petition for certification would have been denied because there is no merit in the issues defendant seeks to project. Had plaintiff moved before argument to dismiss the appeal, the motion would have been granted. [57 N. J. at 171]

So here. If appellant sought leave to appeal, it would have been denied—if respondents had moved timely to dismiss the appeal it would have been granted.

We conceive it to be our obligation, on this record, to dismiss the appeal on our own motion.

It is so ordered.


text:
    HOUSING AUTHORITY OF THE CITY OF NEWARK, A BODY CORPORATE AND POLITIC OF THE STATE OF NEW JERSEY, PLAINTIFF-APPELLANT, v. SUSIE WEST, DEFENDANT-RESPONDENT.
    Superior Court of New Jersey Appellate Division
    Argued January 28, 1975
    Decided February 14, 1975.

      Before Judges Lynch, Allcorn and Furman.

      Mr. Bichcurd A. Conti argued the cause for the appellant {Friedman & D’Allessandro, attorneys).

      Mr. Stanley Varón argued the cause for the respondent {Mr. Anthony J. Marmello on the brief).
   Per Curiam.

In a summary proceeding to dispossess a tenant for nonpayment of rent under N. J. S. A. 2A:18-53, once the default has been established and judgment for possession has been entered, the county district court is without jurisdiction to stay the issuance of the warrant for removal, absent proof that “the tenant will suffer hardship because of the unavailability of other dwelling accommodations”; and even where the unavailability of other housing has been demonstrated by the tenant, the stay may be issued only for a period not exceeding “6 months after the date of entry of the judgment of possession.” N. J. S. A. 2A:42—10.].

It follows that the issuance of the warrant for removal may not be stayed in order to permit the tenant to pay the arrearages in rent (here aggregating $2,199) in monthly installments of $100, which would effectively bar the execution of the warrant for a period of 22 months. Compare Ivy Hill Park Section Five, Inc. v. Handa, 121 N. J. Super. 366 (App. Div. 1972). See also, N. J. S. A. 2A:18-55; Vineland Shopping Center, Inc. v. DeMarco, 35 N. J. 459, 465 (1961).

Accordingly, the stay is vacated and the cause is remanded to the Essex County District Court with directions to issue the warrant for removal forthwith. No costs.


text:
    STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT, v. RICHARD ANDERSON, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Submitted January 14, 1975
    Decided February 4, 1975.

      Before Judges Carton, Crane and Kole.

      Mr. Stanley G. Van Ness, Public Defender, attorney for appellant (Mr. Edward P. Harmigan, Assistant Deputy Public Defender, of counsel and on the brief).

      Mr. William F. Hyland, Attorney General of Hew Jersey, attorney for respondent (Mr. Marc J. Friedman, Deputy Attorney General, of counsel and on the brief).
   Per Curiam.

Defendant appeals his conviction for assault and battery on a correction office! at the State Reformatory at Yardville. Previously his motions for leave to appeal from the denial of a motion to dismiss the indictment were denied by this court as well as the Supreme Court.

On this appeal defendant contends that the state grand jury, established pursuant to N. J. S. A. 2A-73A-1 et seq., had no jurisdiction to consider this matter and no power to return an indictment. He also contends that the statutory exclusion of persons from age 18 to 21 from the grand jury denied him due process, and that the trial judge’s instruction concerning the availability of a witness to the defense constituted reversible error.

Defendant’s first point concerning the jurisdiction of the state grand jury was decided in a woll-reasoned opinion reported at 120 N. J. Super. 345 (Law Div. 1972). We are in substantial agreement with that opinion and affirm its determination on the jurisdictional issue essentially for the reasons expressed therein.

Defendant next argues that he was denied due process of law because the statute relating to the qualification of jurors, N. J. S. A. 2A:69-1, prior to the enactment of S. 1972, c. 81, excluded persons from 18 to 21 years of age and persons whose period of residency in this State was less than two years. The exclusion of persons under the age of 21 from juries does not offend constitutional standards of due process. State v. Stewarl, 120 N. J. Super. 509 (App. Div. 1972) : Carter v. Jury Commissioner of Greene County, 396 U. S. 320, 332, 90 S. Ct. 518, 24 L. Ed. 2d 549 (1970). It has also been uniformly decided that residency requirements for jurors are reasonable provisions for the purpose of ensuring that cases are decided by a body acquainted with local conditions, customs and mores. United States v. Perry, 480 F. 2d 147 (5 Cir. 1973); United States v. Ross, 468 F. 2d 1213, 1215-1216 (9 Cir. 1972), cert. den. 410 U. S. 989, 93 S. Ct. 1500, 36 L. Ed. 2d 188 (1973).

Defendant’s final point concerns an instruction to the jury about the nonproduction of a witness mentioned in both the testimony presented by the State and by the defense. In this regard the trial judge instructed the jury as follows:

There was a man by the name of Wooten who participated as a peacemaker. Unfortunately we haven’t heard from Wooten. There’s some dispute between counsel during closing arguments with respect to who had the duty to bring Wooten here. I tell you that either party could have brought him here by subpoena. I also tell you on that point that the defendant really doesn’t have the burden of affirmatively defending himself against a criminal charge because he has the right to remain silent and mute in his wishes. However, where he decides to take the stand, he has the right to tell you all he knows and he also has the right as the State has to bring into court by subpoena any witness that would assist him in the presentation of his case.

It is possible to construe the charge as suggesting that the jury should draw an inference from the defendant’s failure to produce the witness. If this clearly appeared, it would be improper. State v. Murphy, 85 N. J. Super. 391 (App. Div. 1964), aff’d 45 N. J. 36 (1965). On the other hand, the trial judge did tell the jury that defendant did not have a burden to defend himself. It thus does not appear that the error, if any, had the capacity of bringing about an unjust result. In any event, the weight of the evidence, which defendant does not attack, was sufficiently strong to indicate that the jury was not influenced by this ambiguous charge. Under all the circumstances we are convinced that the alleged error was harmless beyond a reasonable doubt and did not render the trial unfair. State v. LaPorte, 62 N. J. 312, 320 (1973).

Affirmed.


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

text:
    ANDREW J. CORCORAN AND RUTH M. CORCORAN, HIS WIFE, PLAINTIFFS-RESPONDENTS, v. THE HARTFORD FIRE INSURANCE CO., A CONNECTICUT CORPORATION LICENSED TO DO BUSINESS IN NEW JERSEY, DEFENDANT-APPELLANT.
    Superior Court of New Jersey Appellate Division
    Argued January 20, 1975
    Decided February 13, 1975.

      Before Judges Leonard, Seidman and Blschoef.

      Mr. Jeffrey Kull McKinley argued the cause for appellant (Messrs. Stevens & Mathias, attorneys; Mr. George B. Zueca on the brief).

      Mr. David J. Sheehan argued the cause for respondents (Messrs. Crummy, DelDeo, Dolan & Purcell, attorneys; Mr. John A. Bidley on the brief).
   The opinion of the court was delivered by

Leonard, P. J. A. D.

Defendant insurance company appeals from a judgment of $3000 damages, plus $500 counsel fee and $31.40 costs, entered against it in the county district court. Plaintiffs instituted suit on a homeowner’s insurance policy to recover for the loss of a diamond ring.

Plaintiffs’ policy with defendant was in effect for the period from November 4, 1969 to November 4, 1973. In addition to the basic homeowner’s policy, plaintiffs also purchased from defendant, for an additional premium, an endorsement entitled "Extended Theft Coverage.”

The following provisions of plaintiff’s policy are pertinent to this appeal. On the face sheet the policy provided that under Section 1, Coverage C, ‘Unscheduled Personal Property,” defendant’s liability was limited to $30,000.

“Coverage C — Unscheduled Personal Property” was defined as follows:
1. On premises: This policy covers unscheduled personal property usual or incidental to the occupancy of the premises as a dwelling, owned, worn or used by the Insured, while on the premises * * *

Under "Perils Insured Against” there appeared the following definition:

11. Theft, meaning any act of stealing or attempt thereat **'*'.
Upon knowledge of loss under this peril or of an occurrence which may give rise to a claim for such loss, the Insured shall give notice as soon as practicable to this Company or any of its authorized agents and also to the police.

The endorsement which plaintiff purchased modified this language, by providing:

Inclusion of Mysterious Disappearance: As respects only property covered under Coverage C, § 1, so much of the description of the peril of theft under the caption “Perils Insured Against” in the form attached to this policy, as reads:
“Theft, meaning any act of stealing or attempt thereat” is amended to read:
“Theft, meaning any act of stealing or attempt thereat, or mysterious disappearance (except mysterious disappearance of a precious stone or semi-precious stone from its setting in any watch or piece of jewelry).”

Einally, under “Special Limits of Liability” the basic policy provided:

3. Under Coverage C, this Company shall not be liable in any one loss with respect to the following named property:
* -Jr * ^ * * * *
(d) by theft for more than $1000 on any single article of jewelry including * * * precious and semi-precious stones.

Plaintiffs instituted suit when defendant refused to pay for the loss of plaintiff Ruth Corcoran’s (plaintiff) engagement ring which occurred on or about the second Saturday in December 1971.

At jury trial plaintiff was the only witness. She testified to the circumstances surrounding the disappearance of the ring. The family had brought all the storage boxes down from the attic in order to trim the Christmas tree. She was babysitting for her grandchildren that day and there was a tremendous amount of excitement i.i the house. The family all trimmed the tree together and eh the ornament boxes were kept in the kitchen, except for a few of the very old ones which were thrown out. When she became aware that her ring was missing, she searched “everywhere,” including the waste baskets and garbage with no success. She still had hope that she might discover the ring among the Christmas tree ornaments, so when the tree was taken down she searched every ornament and all the wrappings and boxes.

Plaintiff further testified that she was in the habit of taking her ring off and placing it on a ledge above the kitchen sink whenever she did housework. The sink had a common strainer that fit in the drain and plaintiff testified that she never left her ring above the sink when the strainer was in the open position.

On this day plaintiff recalled that there had been quite a few deliveries made to her home. The delivery men always used the back door because of the particular layout of her house. The back door opened into the kitchen. Plaintiff could not recall where the ring had last been before it disappeared and was not sure whether it had been stolen.

Over defendant’s objection plaintiff was permitted to testify as to the value of her ring. She stated that some time after she had filled out a proof of loss she had visited two jewelers to price comparable rings. She received estimates of $4000-$5000. She testified that at the time she filled out this form the amount claimed therein ($2000) represented her best estimate of the ring’s value, but that she now realized that she had substantially under-appraised its value. She explained that “years ago she always knew that a carat was worth $1000 and I think I had assumed it was worth $2000 until I had started to check some prices now.” The ring had never been appraised as it had belonged to plaintiff’s mother-in-law and had been given to plaintiff 30 years before when she had become engaged to her husband. The only person who had thoroughly examined the ring and who would have been able to give an appraisal of its actual value was the jeweler who had placed the stone in its present setting. This jeweler, however, was deceased. Plaintiff testified that she knew her ring intimately, hut that she knew “just a little about diamonds as most women do.” On cross-examination she admitted that she was not positive the ring was “exactly” two carats but asserted that “most women do know what a one-carat diamond looks like or a two-carat * * * * roughly we would know.”

Defendant moved to have its potential liability limited to $1000 because of § 3(d) of the policy under “Special Limits of Liability” (quoted supra). The court denied this motion on two grounds: (1) “because there is ambiguity here as to whether it’s [the special limitation] applicable or not to the mysterious disappearance clause which is incorporated in the endorsement,” and (2) because “on the face of the policy it would seem to the layman that the limits of liability for unscheduled property would be $20,000.”

Defendant’s motion to dismiss plaintiff’s ease because she had not notified the police as allegedly required under the policy, and its request to charge that an element of probability of theft must be shown in order for plaintiff to recover, were both denied.

As noted, defendant rested without offering any witnesses. Plaintiff then moved for a “summary judgment” as to liability. This motion was granted and the matter was submitted to the jury solely on the issue of damages. The jury returned a verdict in plaintiff’s favor in the sum of $2000. Her counsel then moved, pursuant to R. 4:42-9(a) (6) for the assessment of counsel fees against defendant. Following the filing of affidavits by both sides, the court granted the fees and costs as hereinbefore noted.

On this appeal defendant’s primary contention is that plaintiff was required to show the probability of theft in order to recover under the “mysterious disappearance” clause of the policy and the trial court erred in ruling to the contrary.

This issue is one of first impression in this State and there exists a conflict of authority among the other jurisdictions which have considered it. See Annotation, “Provisions of burglary or theft policy as to effect of disappearance of property,” 12 A. L. R. 3d 865, 876-879 (1967). Among those holding that the proofs must establish proof of circumstances which suggest the probability of theft are: Brier v. Mutual Ins. Co. of Hartford, 3 Conn. Cir. 326, 213 A. 2d 736, 737-738 (Conn. Cir. Ct. 1965); Austin v. American Gas. Co., 193 A. 2d 741 (D. C. Ct. App. 1963). The opposite view is espoused in Aetna Ins. Co. v. Zoblolsky, 481 P. 2d 761 (Okl. Sup. Ct. 1971); Sprau v. State Farm Fire & Gas. Co., 308 F. Supp. 549 (D. Mont. 1970); Hammontree v. Central Mut. Ins. Co., 385 S. W. 2d 661 (Mo. App. 1965); Michigan Millers Ins. Co. v. Geller, 168 So. 2d 204 (Fla. App. 1964); Conlin v. Dakota Fire Ins. Co., 126 N. W. 2d 421 (N. D. Sup. Ct. 1964); Midlo v. Indiana Lumbermen’s Mut. Ins. Co., 160 So. 2d 314 (La. App. 1964); Englehart v. Assurance Co. of America, 139 So. 2d 108 (La. App. 1962).

It is to be first noted that the policy terms involved in the cases relied upon by the courts in the first group of cited cases were different from the instant one. They provided that “mysterious disappearance of any insured property * * * shall be presumed to be due to theft,” whereas the policies involved in the latter group were identical with the present policy.

In Midlo, supra, the court relying on Fnglehart, supra, defined “mysterious disappearance” as being “any disappearance or loss under unknown, puzzling or baffling circumstances which arouse wonder, curiosity or speculation, or circumstances which are difficult to understand or explain,” and went on to hold that the possibility or probability of theft need not be shown but that “mere proof of mysterious disappearance [as thus defined] will establish plaintiff’s right to recovery.”

The court in Gonlin agreed but bolstered its conclusion with two additional arguments. First, the court pointed out that “If the amendment to include ‘mysterious disappearance’ were intended to apply only to disappearances where theft was shown to be possible or probable, the exception of mysterious disappearance of a precious or semi-precious stone from its setting would be unnecessary.” Id. 126 N. W. 2d at 424. Secondly, the court noted that the ambiguity in the policy, if any existed, must be construed in favor of the insured. At 425.

In Hammontree, supra, the court reached the same result, but the rationale for its decision was somewhat different. The court expressed the opinion that the words “or mysterious disappearance” in the endorsement were “not to be included in and as a part of the phrase ‘meaning any act of stealing or attempt thereat’ which is definitive of ‘theft’ but rather denote and identify ‘mysterious disappearance’ as a separate and coordinate risk.’ 385 S. W. 2d at 665 (emphasis supplied). This rationale was accepted and followed in Aetna, supra, 481 P. 2d at 764. See also Seward v. Assurance Co. of America, 218 Cal. App. 2d Supp. 895, 32 Cal. Rptr. 821 (App. Dept. 1963); Midlo and Englehart, supra.

Finally, in Sprau, supra, in accepting the above line of cases, the court specifically rejected the theory advanced by defendant herein as enunciated by Austin, supra. The court stated:

If some coverage was added and it surely was, I find it very difficult to find what was added unless the language is interpreted to include losses not connected with a probable or possible theft. If the intention of option 5 [the “mysterious disappearance” clause] was to enable the policyholder to prove theft by something less than the quantum of evidence which a court ordinarily would recognize as circumstantially proving it the language used in the option gives very little clue to that intention. It is almost inconceivable that language would be chosen to create some contractual requirement of proof without saying what that requirement is.

After a consideration of all of the above eases, we conclude that'the better-reasoned rule is that in order for a plaintiff to recover under á “mysterious disappearance” clause as is contained in the instant howeowner’s policy, it is not necessary to first prove the probability of theft. Mere proof of mysterious disappeáraneé, as defined in Midlo, supra, will establish plaintiff’s ’ right to recovery.

Our conclusion is fortified by the general rule of construction followed in this State that if the controlling language of a policy will support two meanings, one favorable to the insurer and the other to the insured, the interpretation favoring coverage should be applied; as well as the subsidiary rule that if the clause in question is one of exclusion or exception, designated to limit the protection, a strict interpretation is in order. Butler v. Bonner & Barnewall, Inc., 56 N. J. 567, 576 (1970). Support is also found in the principle that policies should be construed liberally in favor of the members of the public who purchase them, to the end that coverage is afforded “to the full extent that any fair interpretation will allow.” Kievit v. Loyal Protective Life Ins. Co., 34 N. J. 475, 482 (1961). Accordingly, we find defendant’s first contention to be without merit.

Next, defendant asserts that assuming the law of this State to be in accordance with the above conclusion, nevertheless the trial judge erred in not submitting the issue of liability to the jury for resolution. Plaintiff’s motion, incorrectly designated as a motion for “summary judgment,” was actually a motion for judgment made pursuant to R. 4:40-1. In determining this motion the judge had to accept as true all evidence which supported defendant’s position and had to accord defendant the benefit of all legitimate inferences which could have been deduced therefrom, and if reasonable minds could have differed, the motion should have been denied. Dolson v. Anastasia, 55 N. J. 2, 5-6 (1969).

Although we recognize that there does not exist in this State a hard and fast rule that the credibility of a witness is always a question for jury determination, Ferdinand v. Agricultural Ins. Co., 22 N. J. 482, 500 (1956), yet the mere fact that testimony is uncontroverted does not establish that such evidence is conclusive. Id. at 490-491. Where men of reason or fairness may entertain differing views as to the truth of testimony, whether it be uncontradicted, uncontroverted or even undisputed, evidence of such character is for the jury. Id. at 494. This is particularly so where the testimony, although uncontradicted, is affected by conflicting inferences to be drawn from it. Id. at 498.

Here, although plaintiff’s testimony was not contradicted, it was susceptible to conflicting inferences. She testified that: The ring may have been lost among the Christmas boxes. Every Christmas ornament was examined. She searched the waste baskets and garbage. There was also a possibility that she had taken it off, as she usually did when doing housework, and placed it above the kitchen sink on a ledge. Delivery men came in and out of the kitchen on the day involved.

Under the circumstances we are of the opinion that the trial judge erred in granting the “summary” judgment on the issue of liability and in not submitting to the jury for resolution the issue of whether there had been a “mysterious disappearance” of plaintiff’s ring, along with appropriate instructions defining that term in accordance with Midlo, supra, 160 So. 2d 314, 315 (La. App. 1964). Thus, a reversal of the liability feature of the judgment and a remand of that issue for a new trial is mandated.

We consider next the issue of damages. Although plaintiff may have been competent to testify as to her estimate of the value of her ring, State v. Romero, 95 N. J. Super. 482, 487 (App. Div. 1967), the record clearly discloses that she never specifically expressed such an opinion. Rather she testified, over objection, to the prices of two comparable rings that she had ascertained by visiting two jewelry stores after her ring had disappeared. This testimony was incompetent and should not have been received into evidence. Cf. Nixon v. Lawhon, 32 N. J. Super. 351, 356 (App. Div. 1954). Thus, the jury assessment of $2000 damages is also reversed and remanded for retrial.

At the retrial, plaintiff may offer expert testimony as to the value of the lost ring. The expert’s opinion may be given in answer to a hypothetical question containing a description of the ring as testified to by plaintiff. However, we concur with defendant’s contention that the limit of liability under the instant policy is $1000. Although under the line of cases which we have approved “mysterious disappearance” is a separate and distinct loss from that by theft, nevertheless we are of the opinion that the limitation of liability to $1,000, which is set forth in bold-face type and clearly worded, is applicable not alone to a theft in its usual meaning, but also to the amended or extended meaning as described in the policy, which includes the separate risk of “mysterious disappearance.” Cf. Westchester Fire Ins. Co. v. Continental Ins. Co., 126 N. J. Super. 29, 41-42 (App. Div. 1973), aff’d 65 N. J. 152 (1974).

Defendant also claims that plaintiff is precluded from recovery because her acknowledged failure to notify the police of the ring’s disappearance constituted a failure to comply with a condition precedent of the policy. This claim lacks merit. Ho contention is made that plaintiff failed to notify defendant “as soon as practicable.” We are in agreement with the logic and holding in Conlin v. Dakota Fire Ins. Co., 126 N. W. 2d 421, 425 (N. D. Sup. Ct. 1964), where the court, in considering a similar claim made under a policy provision identical to the one in the present case, said

This requirement is that notice of the loss be given as soon as practicable. * * * [Tjimely notice was given the insurance company. The company was then in a position to notify whomever it deemed necessary.
Where, as in this case, neither the place nor time of the disappearance could be ascertained, notice to the police would be entirely fruitless and, therefore, impracticable. [Emphasis supplied]

Finally, we turn to defendant’s attack on the court’s granting of a $500 counsel fee to plaintiff, plus costs of $31.40. It asserts that no fees should have been allowed because the question of law was novel to this State and defendant should not be penalized in the absence of prior appellate authority. We disagree. We find that the trial judge in awarding fees and costs did not mistakenly exercise the discretion reposed in him pursuant to R. 4:42-9(a) (6). Such an award gives an insured the full benefit of his insurance contract without unanticipated expenses over and above the premiums paid. See N. J. Mfrs. Ins. Co. v. Consolidated Mutual Ins. Co., 124 N. J. Super. 598, 600-02 (Law Div. 1973). However, since we have reversed in toto the judgment entered in the trial court, the amount allowed must be set aside, pending the final outcome of this matter, following retrial. It is to be noted that defendant abandons its allegation that the above rule constitutes an invalid exercise of the rule-making power of the Supreme Court.

In conclusion, the judgment entered in favor of plaintiff and against defendant is reversed and the matter is remanded for a new trial both as to liability and damages, in accordance herewith.

      But see Evid. R. 19 and comment thereto (N. J. Rules of Evid. (1972), § 19-1 at 65).


author: Gelman, J. S. C.

text:
    PASSAIC COUNTY PROBATION OFFICERS’ ASSOCIATION, PLAINTIFF, v. THE COUNTY OF PASSAIC, A BODY POLITIC OF THE STATE OF NEW JERSEY ; ALPHONSE PEZZUTI, CHIEF PROBATION OFFICER OF THE PASSAIC COUNTY PROBATION DEPARTMENT ; RONALD PARKER, PASSAIC COUNTY COURT ADMINISTRATOR ; AND THE JUDGES OF THE COUNTY OF PASSAIC COUNTY, DEFENDANTS.
    Superior Court of New Jersey Chancery Division
    Decided February 5, 1975.

      Mr. Lawrence A. Whipple, Jr. for plaintiff (Messrs. Zazzali & Zazzali, attorneys).

      Mr. Michael 8. Bolear, Deputy Attorney General for the defendants (Mr. William F. Hyland, Attorney General of New Jersey, attorney).
   Gelman, J. S. C.

Plaintiff Association has been voluntarily recognized by the judges of the Passaic County Court (the judges) as the exclusive negotiating representative of the probation officers employed by the County of Passaic. This recognition is embodied in the current collective negotiation agreement between the Association and the judges.

Under date of December 16, 1974 the chief probation officer of Passaic County issued a directive to take effect January 6, 1975. The subject of the directive is “Change in Office Hours,” and in pertinent part it reads as follows:

This is notice that, as approved by the County Court Judges and effective Monday, January 6, 1974, the daily office hours for probation officers shall be 9:00 A.M. to 4:30 P.M., from Monday through Friday, except that one day on alternate weeks, or a variation thereof, each officer shall remain on duty for two and one half hours beyond the normal closing time of 4:80 P.M. These extended hours will be determined by the needs of the division to which the officer is assigned or the particular duties of the individual.

For at least six years prior to the issuance of the directive the “office hours” of the probation officers were from 9 a.m. to 4 p.m. On October 30, 1974 the Passaic County judges held a meeting to discuss “the present normal working hours of probation officers.” At the meeting the judges passed a resolution reciting “that the normal working hours of probation officers be expanded to 9 :00 a.m. to 4:30 p.m.” The reasons given for this action were threefold: (1) the December 1971 increase in court hours by one-half hour a day had enlarged the hours of other court personnel and a similar increase in the probation officers’ working hours would “improve their service to the judiciary”; (2) the increase in duties and caseloads of the probation officers required an enlargement of the work day to make possible greater productivity, and (3) probation officers in Passaic County worked fewer hours than their counterparts in comparable counties.

The directive was issued without prior consultation or negotiation with the Association. The Association thereupon instituted this action to enjoin its enforcement on the ground that it constituted a change in the terms and conditions of the probation officers’ employment which must be negotiated with the Association before it can be put into effect. N. J. S. A. 34.13A-5.3.

By way of preface it should be noted that although this matter was heard after the effective date of L. 1974, c. 123, disposition has been made under the law in existence at the time the directive was issued and the complaint filed, i. e., L. 1968, c. 303; N. J. S. A. 34:13A-5.1 et seq. Neither party has urged that the recently enacted revision of Chapter 303 is applicable to this controversy.

Before examining the contentions of the parties it is necessary to refer to certain aspects of the relationship of the probation officers to the judiciary. Probation officers function as an enforcement arm of the judicial system. Godfrey v. McGann, 37 N. J. 28 (1962). In criminal matters they conduct investigations and submit presentence reports and recommendations, supervise probationary sentences and collect fines; on the civil side they likewise conduct investigations and submit reports in a variety of matters at the direction of the judges, collect and enforce support orders and supervise judgments entered by the courts. N. J. S. A. 2A:168-11, 13. In sum, they perform services for the judiciary essential to the fair and efficient administration of justice.

The Legislature has delegated to the County Court judges authority to appoint probation officers, to make necessary rules and regulations with respect to the performance of their duties, and to fix their salaries and expenses. N. J. S. A. 3A :168-5, 7 and 8. The judges are also authorized to recognize the chosen representative of the probation officers for purposes of collective negotiation under the New Jersey Employer-Employee Relations Act. In re Salaries, Prob. Off. Bergen County, 58 N. J. 422, 424 (1971).

Since 1959 the Administrative Office of the Courts has taken an active role in furnishing consulting services to the judges in the field of probation with the objective of promoting a more efficient and systematic administration of probation services throughout the State. The 1961 report of the Administrative Director of the Courts contained recommendations on such matters as beginning salaries, staff needs and ease loads, grievance procedures, and extra-curricular employment. In July 1962 the Administrative Director notified the judges that henceforth requests for Civil Service examinations for the position of probation, officers should specify that the position did not call for a fixed schedule of hours. He said:

* * * probation officers must be expected to work, within reason, as many hours as may be necessary to accomplish their duties. A specific limitation on or designation of the hours to be worked, particularly if it is less than that worked by many persons in private professional employment, is not consistent either with the nature of the duties to be performed or with the efforts that have and are being made to increase salary levels.

On August 28, 1972 the Administrative Director issued a memorandum to judges and chief probation officers setting forth the position of the Supreme Court with respect to the conduct of negotiations with probation officers under the New Jersey Employer-Employee Relations Act. Among other matters the Administrative Director noted that “Fixed Hours of Work or Overtime Pay” were nonnegotiable items as a matter of Supreme Court policy. Although periodic demands on the part of probation officers to negotiate fixed hours of employment have been made, the Administrative Officer of the Courts has adhered to this stated policy and no contract has been negotiated containing such a provision. The probation officers are deemed to be available to the courts as required to carry out the statutory and judicial duties assigned to them.

Finally, reference should be made to B. 1:34^4, which provides:

Probation officers shall be appointed in accordance with standards fixed by the Supreme Court. All probation officers shall be responsible to and under the supervision of the Chief Probation Officer of the county who shall be responsible to and under the supervision of the judge of the county court or, in counties having more than one judge of the county court, the county court judge designated by the Assignment Judge to be responsible for the administration of the probation department in the county in accordance with applicable statutes, rules of the Supreme Court, and directives of the Chief Justice, the Administrative Director of the Courts, and the Assignment Judge of the County.

As set forth in the foregoing rule, the administration of the county probation officers is subject, among other things, to “applicable * * * directives of the Chief Justice [and] the Administrative Director of the Courts * * *.” The administrative authority of the Chief Justice and the Administrative Director referred to in R. 1:34-4 is set forth in N. J. Const. (1947), Art. VI, § II, par. 3, which provides that “[t]he Supreme Court shall make rules governing the administration of all courts in the State. * * *” In addition, Art. VI, § VII, par. 1 provides that “[t]he Chief Justice of the Supreme Court shall be the administrative head of all the courts in the State. He shall appoint an administrative Director to serve at his pleasure.”

From the foregoing recital it is evident that (1) probation officers are statutory employees of the County Court judges; (3) as employees of the judiciary the terms and conditions of their employment are subject to the constitutional rule-making powers of the Supreme Court acting through the Chief Justice and the Administrative Director, and (3) the Supreme Court and the Administrative Director have determined, as a matter of policy, that probation officers shall have no fixed hours of employment but shall at all times be available to the judiciary to perform the duties assigned to them.

The current agreement between the Association and the judges contains no reference to hours of employment or “office hours” to be observed by probation officers. It may fairly be inferred from this omission that both parties recognized the subject matter of “hours” was not negotiable in accordance with the directives issued by the Administrative Director. Indeed, the Association acknowledged at oral argument that the working hours of probation officers may be diminished or enlarged by the judges either as a matter of contract right or in the exercise of the Supreme Court’s constitutional power to administer the operation of the judicial system and its personnel.

Plaintiff contends, however, that the action of the judges in extending the “office hours” of probation officers an additional 3hours a week without prior negotiation contravenes the Employer-Employee Delations Act, which provides that “[p]roposed new rules or modifications of existing rules governing working conditions shall be negotiated with the majority representative [of public employees] before they are established.” N. J. S. A. 34:13A-5.3; Englewood Bd. of Ed. v. Englewood Teachers Ass’n, 64 N. J. 1, 7-8 (1973); see Essex Council #1, N. J. Civ. Serv. Ass’n v. Gilson, 118 N. J. Super. 583, 585 (App. Div. 1973.)

Plaintiff relies principally on Pros., Det., Essex Cty. v. Hudson Bd. Freeholders, 130 N. J. Super. 30 (App. Div. 1974), certif. den. 66 N. J. 330 (1974). There, as a result of the Supreme Court’s directive of December 14, 1971 lengthening the court day in all trial courts, the Essex County Proseeutor extended the work day of his employees without additional compensation, and the assignment judge of Hudson County ordered a similar extension for the county clerks. The Civil Service Commission held that the directives constituted a “reduction” without good cause, in violation of the Civil Service Law. N. J. S. A. 11:33-38. In reversing the decision of the Civil Service Commission, the Appellate Division, in language equally applicable to the present case, noted that

In contrast to Essex Council #1, N. J. Civ. Serv. Ass’n [118 A. J. Super. 583 (App. Div. 1972)], the extension of hours in the eases before us was not motivated by an arbitrary decision by the appointing authorities but was required to further the interests of judicial efficiency as reflected by the Chief Justice’s directive issued pursuant to his constitutional responsibility. [130 N. J. Super, at 40]

The court added: “The increase in hours is a hazard to which all personnel involved in administering the judicial system are subject.” Id. at 44. The court further held that because the detectives and court clerks were organized groups, the 'Civil Service Commission lacked jurisdiction to hear their grievances, which should have been processed in accordance with the provisions of the Employer-Employee Relations Act. In that connection.the court observed:

Under that act [the Employer-Employee Relations Act] the terms and conditions of employment, such as compensation, are mandatorily negotiable. The act reflects a state policy to promote voluntary resolutions of public employer-employee disputes over terms and conditions of employment. If the employees form an organization recognized under the act for the purpose, of collectively negotiating these terms with the public employer, their remedy in a case such as this is to negotiate the matter of payment for longer hours with the respective boards of freeholders. In the event the latter fail to negotiate in good faith, the organization may seek the aid of the courts to. require them to do so. If an impasse is reached, either party may seek the aid of the Public Employment Relations Commission to assist in effecting a voluntary resolution. [Id. at 45]

Plaintiff argues on the basis, of the language quoted above that defendants violated the Employer-Employee Relations Act in failing to negotiate with plaintiff Association prior to implementing the change in work hours. As noted earlier, however, the contract between the Association and the judges, in accordance with the long-standing policy enunciated by the Supreme Court, contains no provision with respect to hours of work, and it is an implied term of the agreement that probation officers are “to work, within reason, as many hours as may be necessary to accomplish their duties.”

Plaintiff’s argument that the judges’ directive represents a change in a “work rule” is without foundation, for the same reason that the Supreme Court’s December 14, 1971 directive lengthening the court day of trial judges cannot be said to establish “fixed” work hours for the judiciary. In both cases, “office hours” or “court -hours” constitute only one part of the inherent time requirements of the position.

It is concluded, therefore, that the directive in question here does not modify an existing “work rule” within the meaning of N. J. S. A. 34:13A-5.3, but is a reasonable exercise of the judges’ administrative and supervisory authority over probation officers conferred by N. J. S. A. 3A:168-7, and as such is fully consistent with the contractual agreement of the parties. Furthermore, unlike plaintiffs in the Hudson Board of Freeholders case, who were employees of the freeholders, probation officers are state judicial employees whose employment is subject to the explicit and long-standing directives of the Supreme Court which make clear that probation officers are expected to work as many hours, within reason, as may be necessary to perform their duties and that collective negotiations with respect to fixed hours of work or overtime are forbidden.

For the foregoing reasons judgment will be entered dismissing the complaint without costs.

      Excluding certain categories of probation officers.